Immigration Site

Hello,

I have a question and am not sure if I am posting it in the right place or not. Perhaps if I am not someone can tell me where to post.

I am former PR now USC sponsoring my daughters (20 & 19) for GC. We had interviews yesterday - one approved - one pending outcome of VWP / AOS eligibility case in federal appellant court. Does anybody know what that case is about? I can find no information online anywhere.

The daughter this pertains to grew impatient in August 2008 after graduating from high school and not being able to work so she went back to Australia. We had been pending AOS since 1999 and the entire process was messed up due to us moving for my husbands job.

They denied the AOS in September of 2008 - she was not overstay since she was in Australia by then anyway. She came over to visit July 2009 for 6 weeks and returned to Australia in September 2009. She then decided she wanted to come back here and have the process restarted. Immigration lawyer on another forum suggested quickest way, since she will age out December of this year, was here on VWP - then apply since there were exceptions for immigrating dependents of USC. She returns in December 7 09 - valid VWP through March 7 10. Application PD of April 22nd 2010.

So we get to the interview and the officer says that she has not been an overstay however he cannot make a decision until he hears what is going to happen with the AOS / VWP case mentioned initially in this post.

My daughter has been here in the US since before she was 3, considers the US her home and is distraught that it is this aggravating and difficult to become a PR.

Can anyone please tell me what the case the officer is referring to is all about? And what the chances are that she may be approved.

Thanks in advance.

My daughter has been here in the US since before she was 3, considers the US her home and is distraught that it is this aggravating and difficult to become a PR. She has been in the US as a young child in what immigration status? If she was here illegally, that is where the problem lies.

First, unlawful presence in the US for 180 days means being banned from entering the US for 3 years, starting from the day one leaves the US. 10 years if the overstay was 1 year or more.

However, for the purposes of that ban they dont count time in the US spent below age 18, so the ban would not have been triggered if your daughter left before age 18 + 180 days. So either she left before that age and didnt trigger the ban, or if she was still in the US illegally beyond that age, they didnt realize she was in the US illegally at that time so they let her back in last year.

If we assume she didnt trigger the 10-year ban, the other issue is that people who have overstayed in the past are not eligible to use the VWP; they have to apply for an actual visa at a consulate. So her problem might be that the VWP entry is not considered valid due to the old overstay, and she was supposed to apply for a visa before returning to the US. And her VWP entry being invalid would mean she is ineligible for AOS. So maybe that is what the court case is trying to sort out.

Other speculative possibilities of what is going on in that court case include:
- Changes of status are disallowed with the VWP, and maybe USCIS decided to start interpreting it to mean adjustment of status is not allowed.
- Or they said adjustment of status is not allowed if filed past the 90-day limit of the VWP
- Or they say the leniency regarding preconceived immigrant intent for children and spouses of US citizens does not apply to those who used the VWP to enter

You should have asked the officer for more details of the case, if the court allows those details to be released at this time. If you had the name of the case your lawyer could search for it with Lexis-Nexis or whatever they use now, or it might even be on the Internet. Maybe you can go back and ask the officer for the case details, if you didnt already do so.

Now the problem is that if she turns 21 while waiting for the outcome of that court case, and her AOS ultimately gets denied, it will be some 5+ years before she can obtain a green card through you as an over-21 daughter of a US citizen. However, that court case is related to AOS when using the VWP, and should not affect her ability to obtain a green card through the consulate. So if she leaves the US and withdraws this I-485 before she turns 21, and you withdraw the I-130 and file a new one before she turns 21, or you keep the I-130 alive but file I-824 to switch processing to a consulate in Australia, she should still be able to get the GC late this year or early next year by completing the process in Australia. Discuss that possibility with a lawyer.

What was the reason for the denial in 2008?

Immigration lawyer on another forum suggested quickest way, since she will age out December of this year, was here on VWP - then apply since there were exceptions for immigrating dependents of USC. That was bad advice, as she would have been refused entry if the officer at the POE knew she had a USC parent. And there was no need to get her into the US quickly with the VWP to protect her from aging out; she could have stayed in Australia while the CSPA would have protected her from aging out even if she turned 21 or 22 during the process, as long as you had filed the I-130 before she turned 21. Instead of facing this AOS limbo, if you filed I-130 with the consular option her GC probably would have been approved at the consulate in Australia this summer.

Thanks for your help. Here are answers to your question:

Immigration officer stated that since she was still pending AOS on first application originally filed and not denied until september 08 she does not trigger 10 year ban - the first half of the interview he thought she would be but when he found denial letter he changed his notes to reflect that fact. She was denied because she failed to appear for interview in September 08 for which we received notice shortly after she left in August 08....go figure.

I was not USC at time of entry (dec 09) and obtained through naturalization in Feb of this year. He offered no details and stated he would not regarding the case in federal court that he was referring to, but only said they were determining the interpretation of that law that provides exceptions to dependants of USC for immigration while here on VWP. He said that a couple of weeks ago he heard they were about a week away from a decision and it should be anytime that he hears something "down the pipe".


I guess if I knew exactly what the case ws about I could figure out what my next move will be. Not sure what else I need to do in the interim to be prepared for next step if necessary. Hence the frustration. Would I now need to send her back to Australia, apply for B2 visa, and reapply or does the I-130 constitute a replacement to her original VWP status and allow her to stay until GC issued.

So confused and frustrated!!