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Overstay Could Bar Green Card for Visa Waiver Entrants
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Posted On: May 20, 2008
Overstay Rules for Visa Waiver Countries Are Changing!

Visa waiver entrants benefit from a program that Congress created allowing citizens of certain countries to come to the U.S. as tourists for 90 days or less without visitor’s visas. To get the government waiver of the usual visa requirement, the tourist has to sign a wiaver of his or her own right to contest removal other than on the basis of asylum. Visa waiver countries include Germany, the United Kingdom, Spain, Belgium, Australia, France, and others. A total of 27 countries currently have this designation.

In a recent 9th Circuit decision (Momeni v. Chertoff, March 31, 2008), the court held that a visa waiver entrant from Germany could not benefit from adjustment of status (green card application) from inside the US despite it being based on marriage to a U.S. citizen, due to overstay after the entrant was placed in removal proceedings before filing for adjustment. Under those facts, the visa waiver entrant would have to consular process and could be subject to an unlawful presence bar (3 or 10 years depending on the amount of time overstayed) which would require a lengthy waiver process to be able to re-enter the U.S. as well as grant from the Attorney General to let him come back despite a recent deportation.

What this case means at least in the 9th Circuit, is that it is riskier for a visa waiver entrant to apply for adjustment after the 90 day alloted stay expires.

CIS local offices may interpret this case to apply to visa waiver entrants who overstay their 90 days and then file a green card case (adjustment) whether or not a person is ever placed in removal, leading to a denial of the green card case. It’s a catch in a way, because applying for an adjustment right after entry can lead to CIS concluding that the visa waiver entrant committed visa fraud at entry by really intending to move to the US on their visa waiver (which is the equivalent of a visitor’s visa), which could result in denial of the adjustment application and eventual removal. Caselaw in other circuits may also affect visa entrants’ ability to apply for permanent residency in the U.S.

Attorney Heather L. Poole practices exclusively in the area of U.S. family-based immigration law and citizenship law. Heather is a nationally-published immigration author, frequent lecturer on immigration issues, and member & officer of the American Immigration Lawyers Association’s Southern California Chapter. For more information about Heather and the services offered, visit www.humanrightsattorney.com

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Anonymous May 24, 2008 at 4:45 am

Hello,

I’m married to a USC since July 2004.

I just received by green card (10 years) permanent residency which will take effect on June 3, 2008 expiration date April, 2018.

My marriage is falling apart and I know it will not work? I didn’t marry for green card as I already proven it that’s why I was granted 10-year permanent residency without an interview. I had an ectopic pregnancy too; but I already decided my husband and I marriage will not work out to the extend that I no longer anymore plan to have a child with him because I don’t want him to be the father of my future children.

My husband had twice divorced and had five grown kids from first ex-wife who had criminal activities. I’m the third wife. I no longer want to plan to have a future kids from him because this is my life and I don’t want to have any trouble and problems in the future. I live in Detroit known as the crime city in the US and I always fear my life to go out.

I want to move on and start my life new. I’m thinking of separation first then divorce when I’m already in California. I know my husband will not agree with it because he thought I use him for green card. I never use him. This is my life. I don’t want to regret or become miserable for the rest of my life.

I’m stuck I don’t know what to do. I want to move on and work in other State and live marital home. What will I do?

My question is:
1) Can the immigration take away my green card if living marital home for work. I just got my permanent resident card (10 years) when is the best time to do that?
2) Can my husband sue me for desertion or abandonment if ever I left marital home without consent?
3) If I file separation maintenance in Michigan can I go in advance and work in California while the case is pending or should I wait for the approval?
4) If I for divorce how long do I have to wait? I don’t want to stay in with my husband while the divorce case is pending because my husband might harm me. I want to file for divorce in California when I’m already there, but I’m worried if he counter sue me in the future that I just waited for my green card then abandoned him and left him? My intention is not that, I want to start my life as I have no future with him.

Anonymous July 15, 2008 at 8:48 pm

Hi Atty Heather,
I have just read your blog entry. Now, I am wondering if you have written anything about a case where an individual carrying an expired B2 visa married a long-time U.S. citizen boyfriend, and was able to successfully adjust his/her status after getting married (despite overstaying as a tourist).

If it’s not too much to ask, I would like to hear from you through celgaet1@yahoo.com.

Thank you in advance.

– Maricel

Candy March 19, 2009 at 6:15 pm

This case is similiar to ours and I wanted to kow your opinion on this. My husband entered the United States at 15yrs with his parents on a VWP. The family applied for asylum through advice of a lawyer. The lawyer filed fraudulent paper work on their behalf to make the process “easier” for him to get them their green cards (The moved from Sweden, but were born in Iran) The lawyer was raided later by the FBI, he had been under investigation you might have heard of him “Tabatabai”. The family had received approval of the aslyum and temporary green cards. They were later revoked and taken into immigration custody. My husband was 24 at this time. He was married and ICE released him he applied through his wife and later they divorced. They never went to any interviews. His application stayed in the system with her over a year after they split. We dated and got married a year after they split and in Oct 30 ICE came and picked him up, on Visa Waiver Overstay, on OCT 31st his old petition with her was denied, a day after they picked him up. In December I filed a I-130 and then in March I submitted the rest of the adjustment package. I received a letter in the mail for him recently saying he had a NTA for staying over 90 days since his prior I-485 was denied. If USCIS is counting from when it was denied on OCT 31st then why did ICE come on Oct 30th and say he had overstayed his VWP?
Can we still adjust status for him as he had not remained here without filings, he had a asylum approval through his parents in 2001, but it was revoked. They appealed it until 2006 when the family was picked up. In 2006 to 2007 he had another asylum app in which he withdrew June 2007, then in July 2007 he applied through his prior wife. On OCT 31 2008 it was denied and I filed a petition for him Dec 2008 so he had not been over 90 days with nothing filed.
I know this is a very coplex case, but any advice would be greatly appreciated. Thank you

Divorce Records March 15, 2010 at 10:16 am

thank you for sharing with us.

Atty Heather December 17, 2011 at 9:05 pm

When separating so soon after you obtain your green card based on marriage, there is often the concern by CIS that you stayed with your spouse only for the green card, which brings up the possibility that the marriage was not credible to begin with. This can be true regardless of whether it is a 10 year green card or a 2 year conditional green card based on the marriage.

If you are in a bad marriage, you don’t have to stay just because of immigration worries. However, you will have to document that it was a real marriage, especially when this issue comes up at the naturalization stage (if you apply for US citizenship) because on paper, it looks like you were in the marriage for residency. While considering departing the relationship now, it’s best to obtain as much documentation as to why the marriage did not work out, what you did to try to resolve your issues (counseling, testimony of friends, pastors, etc) and the financial commingling/assets or other bona fide marriage documentation that existed during the relationship (such as birth certs of children born to the marriage) that you can accumulate now to show that it was a legitimate relationship.

Anonymous February 24, 2013 at 10:43 am

Hi Heather! My name is Tsuyoshi. I am a Japanese-American.

Lately, I’ve fallen in love with a beautiful young lady from Malaysia. She is 16 and I am 20. Yeah, 4 years difference! I plan to marry her once she is 17 or 17 though.

I just have a few questions.

1) If she comes here with a travel visa, but overstays until she is 17 or 18 and then we marry and get her a green card, is this all possible to work out without worrying about her deportation?

2) Our marriage is a real marriage, genuine, pure bliss and true love at its finest. We communicate effectively without swearing at each other, and we really fill in each others’ weaknesses and strengthen each other. We never call each other any insults or names when we lose our tempers. We have dreams and a future planned out for each other, hence our marriage. So here’s my question, will the CIS be able to see this as a genuine real marriage and permit us, even though she is an immigrant with an overstayed visa?

Anonymous February 24, 2013 at 10:48 am

Hello Heather,

I plan to have a bona fide marriage with my lover.

She is an immigrant with and overstayed visa, and I want to marry her when she is 18. I am currently 20 and she is 16.

I just wanted to ask if this was possible? She is from Malaysia and she doesn’t want to live there anymore, she wants to come here with me and live.

The thing is, I can’t marry her until she is probably 17 or 18. It will take a while, so throughout those years her visa will expire. Will I still be able to marry her and not have her be deported because of an overstayed travelers visa? I understand that dual intentions could be well considered here but….

We truly love each other. We are a perfect example of bona fide. We just want to be together and build our dreams and future together. We communicate effectively like adults; we never swear or throw insults at each other when we get angry. We communicate with each other, discipline each other, and fill in our weaknesses with our strengths and complete each other with true companionship. Communication is a big strength of ours.

So after all this, do you think the CIS will see this as a genuine bona fide marriage and let us get my lover her green card or citizenship, even despite her overstayed traveler’s visa?

Atty Heather April 13, 2013 at 3:34 pm

Never encourage a fiance or spouse to enter the US on a temporary visa such as a tourist visa with the intent of overstaying that visa or moving to the US on that visa. That can easily be considered visa fraud (lied about intent to get the visa and/or lied at entry) and could bar your fiance or spouse based on misrepresentation and implicate you, as their spouse if you are involved, with fraud with civil and criminal action. Misrepresentation can be a lifetime bar with only a limited waiver available in certain circumstances. Always consult a licensed, experienced immigration attorney about the right way to have a loved one immigrate.

With that being said, it may be possible to overstay a visa (although you are exposing yourself to ICE to be picked up and deported) and still be able to adjust your status in the US as the spouse of a US citizen but you will still run into a potential fraud finding as well as other considerations. Do not commit fraud or listen to others without explaining your facts and goals with a competent immigration attorney.

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