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  • #16
    A person admitted under the VWP cannot be authorized to remain in the United States longer than 90 days, except that, in emergency situations the District INS Director may permit satisfactory departure within another thirty days without a violation of status. VWP aliens may not change nonimmigrant status within the United States under INS §248 and may not adjust status to permanent residence within the United States under INA §245, unless they are the immediate relative of a U.S. citizen, or pay the penalty fee pursuant to the provisions of INA §245(i).


    • #17
      I need to add:

      The applicant for entry must show that they have the financial resources to support themselves during their stay in the US. Those who arrive by boat or plane must have a return ticket. Upon arrival, the applicant completes an I-94W. On this form, the applicant indicates that they waive the right to a hearing in the event they are ordered deported, and that they understand they cannot apply for an extension or change of status in the US. Therefore, if the purpose of a person's visit to the US is to investigate possible employment or education, they should obtain a traditional B-1/B-2 visa. There is one exception to the rule that a person cannot change their status after entering the US under the Visa Waiver Program covering people who are applying for adjustment of status as the immediate relative of a US citizen or under section 245(i).


      • #18

        I am a USC petitioning for him. He had overstayed by about 6 months before we filed our paperwork (I-485 & I-130). He also has a brother living here that is a USC as well.

        Would we have had to file before his 90 days were up in order for this to be legal?? We went to a lawyer and asked if he needed to go back or if we could file, we were told that the AOS would be valid, but now I'm not so sure!


        • #19
          His status right now is AOS pending meaning he has a temporary legal status until AOS is adjucated.There are few excemptions in VWP. Normally you can't adjust your status in the US but if you are a spouse of USC you have the legal right to adjust in the US. Since he is already in removal, you need to get your husband out by posting a bail. I think the IJ will just drop this because the law says he can adjust his status in the US. If worse comes to worst, there are waivers for this.I think if he will be deported he might be inadmissable for 5 years but you can submit I-212 and I-601 together so he can reenter the country. There is another post similar to this under waivers, I'm not sure. I gave her more information and my answer was more specific than this one.


          • #20
            We are being told that there is no bail nor can he go in front of an immigration judge, because his rights were waived when he came in. We are fighting this in civil court... because we did file AOS. I guess I just confused about which way the briefing is going to go because I can't understand if it was legal to file the AOS or not?? Would it just be easier to go back and file from London with the waiver then it would be to stay here and fight it?? Another thing that scares me about staying here and fighting it is that they are picking people up for anything or nothing here in CA so if he got out and bail and we were able to wait and have our interview, what if he starts work again and things are just getting situated and they pick him up because of his accent or something, then we have to start over again??!!


            • #21
              No bail? That is really scary. I thought that the Civil Rights Law applied to everyone in the US but maybe I was wrong?

              Welcome to the new Police State of America.


              • #22
                Yes you could file for AOS, that WAS legal.

                Usually on a VWp you can't adjust your status EXCEPT if you are married to a USC.

                I came on a VWP and I have my green card now.

                I don't know about the rest but I do know, you CAN adjust your status after you marry a USC when you came in on a VWP.


                • #23
                  Thanks Marie and Brownfox for all your info.

                  I guess now it's all in the judges hands. Hopefully everything goes well.


                  • #24
                    I really don't understand the situation here. Your husband is already married to you and he has all the documents confirming this . in fact he holds an EAD and valid SSN, why did they pick him of all people? There are so many illegals in the US, why pick someone who is married to a USC if his crime is only an overstay? Of course he came in under VWP but marriage to USC will override the problem of overstay. I think the INS who got him was unaware that he was already married and AOS pending. This is a very interesting topic to discuss that's why it's in the court now.Please let us know more about your case and keep us posted. Did someone report him to the INS? DO you know someone who is capable of doing this?Maybe what the law says is you can adjust your status even under VWP as long as you don't violate your stay.If he submit all papers while status was good maybe he won't have any problem.He could be given EAD and anybody can submit AOS but papers are not scrutinize at that time of filing. They will come back to you after they check your packet of information.Since he violated his stay, he is deportable and can't avail any judicial hearing nor waiver because he waived his rights when he came in.I think that's the reason why you are now in the civil court not the usual way. Correct me if I'm wrong but it's just my opinion.What did your lawyer say about the case?


                    • #25
                      Where you in status when filing your application? Have you heard anyone who violated their status yet were able to adjust in the US? Maybe in this case, marriage to USC won't cure any problem he has if he violated his status because he waived his rights to any judicial proceedings.I think he would just go back and apply in England.


                      • #26
                        I was out of status. I filed just before 180 days. Actually we thought at the time that we had all the time in the world to file. We knew I couldn't work but we didn't think that if the INS knew we hadn't filed, I could have gotten deported.

                        Overstaying has nothing to do with it. YOu can overstay for 20 years and they overlook that once you marry a USC.

                        Either they are out on a mission or there is a misunderstanding somewhere. It just sounds really weird to me.


                        • #27
                          He was picked up for working illegally. He had his work authorization and was about a week away from starting a job with it. So once they had him in custody and my lawyer gave them our A# from filing our paperwork, they now are being harsher about his overstay before we were married and filed. His overstay was only about 7 or 8 months. So in civil court it will be decided on whether the INS has the right to deport him or if his rights are being violated and he has the right to stay and we can have our interview.

                          At this point I'm not sure if fighting it from here or from London would be better??


                          • #28

                            What is the "180 days"? How does it apply or affect filing?


                            • #29
                              As long as you had the paperwork submitted before he was picked up, which i think you have, i don't think they can do anything about the overstay.

                              Working illegally is usually also "pardonned" if you tell them that yes you did work without permission. But being caught doing that, I'm not sure.

                              If you overstay your visa by 180 days but under 1 year, if you leave the US, you are barred from reentering for 3 years. If you overstay by more than a year and leave, it's a 10 year bar.

                              Filing before or after the 180 days doesn't change anything.

                              I guess I just said that because I filed for a travel document and I didn't realise at time that had I filed a week later, I could have been barred from reentering. Sorry, that had no bearing on him being detained. I'm just thinking to myself I guess

                              I would consult another lawyer to be sure that your lawyer is doing the right thing.


                              • #30
                                GOOD LUCK HOPEFUL...
                                this is the first story on this board I am having hard time to understand...good luck


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