Legal Question in Immigration Law in Florida

Re: US Citizen married a visa waiver overstayer

Dear Inquirer:

Generally, a visa waiver holder is eligible to adjust status in the US ONLY as an immediate relative of a US Citizen. The USCIS, however, may place such an applicant in removal proceedings, at which time the VW applicant would be deemed ineligible to adjust status. In a recent case, the US Court of Appeals for the 9th Circuit held that once in removal proceedings, the VW holder is not eligible to adjust status and the same decision appears to say that adjustment of status is no longer available once the VW holder overstays the 90 admission period. See, Momeni v. Gonzales, (9th Cir. 2008.

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Re: US Citizen married a visa waiver overstayer

Your marriage case will need evaluation by an attorney to be able to tell you what its strengths and weaknesses are. There is always a chance of denial and it's better to file correctly than take a chance. Even though your husband entered visa waived, he still may be subject to deportation if USCIS feels there isn't a bona fide marriage, or if there was some other violation of the law. Since he waived his rights, it is all the more important that your marriage petition is reviewed by a qualified immigration attorney. Please be aware of using immigration paralegals, or notarios, who claim to have expertise in the law.