I came to USA with Visa waiver program on December 2011 and I overstayed more than 180 days now.
My fiance is US citizen, and we are going to get married next month and start work on my visa application immediately.
I read recent decision that made from second circuit court on August 28 (Gjerjaj v. Holder),
it seems like they will no longer allow people to file AOS if the participant overstays the 90-day period of authorized stay.
I already over stayed more than 180 days now, if I leave the states, I will get 3 years ban.
My question is,
1.Can I apply 601 waiver with my AOS applications?
2. What happen if I-486 or i-130 denied after interview due to visa waiver overstay?
Will they allow me to apply 601 waiver in the states? Or will I get deported?I just want to prepare for the worst case scenario . Any advice will be appreciated. Thanks in advance.
I should begin by noting that the case you mention, Gjerjaj, is one that I have not yet reviewed in detail. However, my understanding is that the petitioner in that case was trying to adjust status based on marriage while in removal proceedings before the U.S. Immigration Court, rather than applying for adjustment affirmatively through the USCIS.
There is a very different procedure for people admitted on the visa waiver before the Immigration Courts. The visa waiver admission contains a waiver of a right to contest future removal proceedings, other than "asylum only" proceedings, which appear to have been denied in Gjerjaj's situation.
It is possible for a person admitted on the visa waiver to adjust status affirmatively before USCIS as an immediate relative spouse of a U.S. citizen in certain circumstances. Thus, it appears your question actually relates to whether it is a good idea to file for adjustment of status with USCIS or depart the U.S. for consular processing, knowing that you will need an unlawful presence waiver due to your overstay situation. That answer is dependent on several personal facts and circumstances that are best reviewed in a private consultation with a licensed, experienced immigration attorney. For assistance locating immigration attorneys in your area, you can look here on Avvo, at www.aila.org or www.immigrationlawhelp.com.
Ms. Doerrie's answer to your question is general in nature, as not all facts and circumstances relating to the specific person(s) and situations involved are known to her. Ms. Doerrie recommends consulting with an immigration attorney regarding your specific facts and circumstances prior to making any legal decision or submitting any form or application. This response does not constitute legal advice or create an attorney/client relationship.
Yes, they are getting tough on Visa Waiver Program people ... meet with an attorney.
PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship.
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