Case: I-130/I-485
Issue: Visa Waiver Overstay
Applicant/Beneficiary – Argentinean
Location: Columbus, Ohio
Our client entered the United States in 2001 from Argentina under the visa waiver program. When he entered the United States, he was a minor and came with his parents. As a Visa Waiver Entrant, he was only authorized to remain in the United States for 90 days. However, he has remained in the United States ever since.
Several years later, he married his U.S. citizen wife on March 25, 2011. One main issue in his green card application through marriage was the fact that he came to the United States under the visa waiver program. As our office wrote in our previous success story with a similar issue, under the visa waiver program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum). The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the United States to visit and then leave without all the red-tape involved in visa issuance.
Our office filed the I-130 Petition and I-485 Adjustment of Status Application on July 21, 2010. Our office requested the CIS to exercise favorable discretion in granting adjustment of status despite the filing date falling beyond the expiration of the visa waiver. Everything went smoothly and the receipt notices, the fingerprint appointment, and the work permit all came on time. There was no Request for Evidence. Prior to the interview, we thoroughly prepared our clients. On October 14, 2011, our client was interviewed at the Columbus, Ohio USCIS Field Office. We accompanied them at the interview as well. Despite the visa waiver / overstay issue, the USCIS officer approved his green card application on the same day. Now, our client is a green card holder.
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