Urgent - Please help ! overstayed with visa waiver program and I-539 sent

I

indohkusa

Registered Users (C)
Hi all,
I will appreciate any suggestion / solution.
My parents are British Citizen and came to USA with Visa Waiver Program few months ago because I just had a baby. When their I-94 were about to expired in Aug, I filed I-539 for them as well as I-130 because I did not know that extension stay is not allowed under VWP ( I just found out today).
Now they have been overstayed for 2.5 months. What can we do ???!!!

My parents are old (70 and 60), they depend on me on taking care of this kind of issue, and now I really don't know what to tell them (they still don't know)

Shall I send them back immediately? I intent to apply green card for them so that they can stay with the family as they are old and will need us to take care of them in the future (all the family members are in USA). Will this overstay affect their application in the future? Will they allow to come to USA again? What should I do now ??

I really appreciate your help. Any suggestion / opinion are welcome.
 
they should go back to england immediately and go through consular processing. As long as they do not overstay more than 90 days they will not trigger 3 year ban.
 
AzBlk said:
they should go back to england immediately and go through consular processing. As long as they do not overstay more than 90 days they will not trigger 3 year ban.
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The 3-year re-entry bar is triggered after 180 days of illegal presence, not 90.
 
Well, since you filed Form I-539 for them even though they are not eligible i.e. there is nothing to extend if they came on the VWP, they probably would be denied.

I would not wait for a denial letter before acting quickly on this one because once denied USCIS may inform ICE of their current status i.e deportable.

I would do either of the following:
  1. Arrange for them to return to England as soon as is reasonable possible before triggering the 3 year ban or
  2. File an AOS Petition for them if you are a U.S. Citizen immediately.

Good Luck and I hope all goes well.
 
indohkusa said:
I intent to apply green card for them so that they can stay with the family as they are old and will need us to take care of them in the future (all the family members are in USA). Will this overstay affect their application in the future? Will they allow to come to USA again? What should I do now ??
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Next time they visit the US, they need to get B visa.
But since you are filing for your parents, I assume you are US citizen and you should be able to file I485.
 
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GotPR? said:
Next time they visit the US, they need to get B visa.
But since you are filing for your parents, I assume you are US citizen and you should be able to file I485.
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How are they going to get a B visa if an I-130 has already been submitted? Immigrant intent has already been demonstrated, and the consular official isn't going to believe they are "just visiting".

I'm not sure whether AOS is even possible from VWP, so probably the best thing to do is have them return to the UK immediately, and wait for consular processing. It took my mum approx 8 months from filing I-130 to receiving immigrant visa in London.

A quick consultation with a lawyer might be a good first step too.
 
boatbod said:
I'm not sure whether AOS is even possible from VWP, so probably the best thing to do is have them return to the UK immediately, and wait for consular processing.
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That's an excellent point. I know you can adjust from VWP based on marriage to a US citizen, but I think that's about it. I could be wrong; hopefully someone can enlighten us.
 
Here is from 8 CFR Sec. 245.

(b) Restricted aliens. The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act, unless the alien establishes eligibility under the provisions of section 245(i) of the Act and Sec. 245.10 , is not included in the categories of aliens prohibited from applying for adjustment of status listed in Sec. 245.1(c) , is eligible to receive an immigrant visa, and has an immigrant visa immediately available at the time of filing the application for adjustment of status: (Revised 10/1/94; 59 FR 51091 )

< other clause>

(8) Any alien admitted as a Visa Waiver Pilot Program visitor under the provisions of section 217 of the Act and part 217 of this chapter other than an immediate relative as defined in section 201(b) of the Act; (Amended 7/23/97; 62 FR 39417 )


Ans 201(b) defines immediate relatives as

(b) Aliens Not Subject to Direct Numerical Limitations. - Aliens described in this subsection, who are not subject to the worldwide levels or numerical limitations of subsection (a), are as follows:

(1) (A) Special immigrants described in subparagraph (A) or (B) of section 101(a)(27) .

(B) Aliens who are admitted under section 207 or whose status is adjusted under section 209 .

(C) Aliens whose status is adjusted to permanent residence under section 210 , or 245A .

(D) Aliens whose removal is canceled under section 240A(a) .

(E) Aliens provided permanent resident status under section 249 .

(2)(A)(i) Immediate relatives. - For purposes of this subsection, the term ``immediate relatives'' means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age. In the case of an alien who was the spouse of a citizen of the United States for at least 2 years at the time of the citizen's death and was not legally separated from the citizen at the time of the citizen's death, the alien (and each child of the alien) shall be considered, for pur poses of this subsection, to remain an immediate relative after the date of the citizen's death but only if the spouse files a petition under section 204(a)(1)(A)(ii) within 2 years after such date and only until the date the spouse remarries. 3/ For purposes of this clause, an alien who has filed a petition under clause (iii) or (iv) of section 204(a)(1)(A) of this Act remains an immediate relative in the event that the United States citizen spouse or parent loses United States citizenship on account of the abuse.
 
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Parents of U.S. Citizens are considered Immediate Relatives and can adjust status even though they entered under the VWP Program.

The question here is if the OP is a U.S. Citizen.
 
asPapi said:
Parents of U.S. Citizens are considered Immediate Relatives and can adjust status even though they entered under the VWP Program.
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Thanks, asPapi and GotPR. I was unsure if the exemption allowing one to adjust status was for all Immediate Relatives, or merely spouses of USCs. Thank you for clarifying the matter.
 
Thanks guys, Yes i am a US Citizen and I know that extension stay is not allowed for VWP and also not for status adjustment too.
The question is, can immediate relatives of US Citizen allow to adjust status even under VWP, i would more than happy to apply I-485 for them. I see the info above said "Visa Waiver Pilot Program", is it same as VWP?
Another question is, their I-94 has expired and only I-130 has already submitted, will it be too later to submit I-495 now? Are they still consider overstayed illegally even with I-130 receipt ?
Thanks for all the help!
 
indohkusa said:
Thanks guys, Yes i am a US Citizen and I know that extension stay is not allowed for VWP and also not for status adjustment too.
The question is, can immediate relatives of US Citizen allow to adjust status even under VWP, i would more than happy to apply I-485 for them. I see the info above said "Visa Waiver Pilot Program", is it same as VWP?
Another question is, their I-94 has expired and only I-130 has already submitted, will it be too later to submit I-495 now? Are they still consider overstayed illegally even with I-130 receipt ?
Thanks for all the help!
Click to expand...
It used to be called visa waiver pilot program, and now is called visa waiver program after it became permanent program.
 
Thanks GotPR? for posting the clause.
Please bear with me because I don't understand the code in the clause.
Does it mean that I can still file I-485 for my overstayed mom with expired I-94 who came via VWP??
If so, which application type i should pick? I have I-485 form in front of me right now and not sure which can be applied.
 
Based on the extract from 8.CFR.245, you can definitely apply for AOS for a parent of a USC. If my understanding is correct, you will also need to send I-864 (affidavit of support), I-693 (medical), G-325A (biographical info) and maybe others along with the I-485. Do some research before mailing anything!
 
Thanks boatbod,
I just called USCIS and found that I can still file I-485 with expired I-94 and entered via VWP. i am looking at the I-485 right now...
Which is the reason I am applying for an adjustment to permanent resident status? None of them seems applied...
Also what should i put under "current USCIS status"..... Please help.

Thanks everyone
 
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Sorry,
Let me clarify.
On I-485, under "I am applying for an adjustment to permanent resident status because:" Which one i should pick among all those selection? None of them seems apply.
Also what should i put under "current USCIS status"

Thanks everyone
 
indohkusa said:
On I-485, under "I am applying for an adjustment to permanent resident status because:" Which one i should pick among all those selection? None of them seems apply.
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a).

Read the phrase in parenthesis that tells you to attach a relative petition that would give you an immediately available visa number if approved.
 
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