In November 2012, I attended an interview in the San Diego office of USCIS with my client from Oceanside. She is originally from Great Britain and married a US Citizen, who was also an active duty Marine. The couple had a young child. My client initially entered the United States under the visa waiver program in the 1990s. She overstayed and remained in the US without authorization for over a decade.
Standard USCIS policy is that visa waiver overstays are eligible to adjust status like any other legal entrants to the United States. However, the San Diego office takes a different approach – the San Diego office posits that visa waiver overstays are not eligible to adjust status. Further, because visa waiver entrants forego their right to a removal trial as a condition of being admitted on the visa waiver program, they cannot argue to an immigration judge that they should be admitted as lawful permanent residents.
In the present case, we filed for adjustment of status in San Diego despite the visa waiver entry. We intended to argue that our client’s husband was an active duty Marine and she should be considered for military parole in place as a result. Military parole in place allows the spouses of active duty service members to adjust status despite illegal entry into the United States. The policy is meant to benefit service members who risk their lives for the United States.
At the interview in November, everything went well. The officer seemed sympathetic to our case and even remarked that he was in the Marines and worked on the same vessel that my client’s husband works on. He told us that he needed to get his supervisors approval for visa waiver entrant cases, but he did not think that would be a problem. A few weeks later, we received an approval notice for the I-130 visa petition, but nothing regarding the I-485 application to adjust status.
Shortly after the holidays, we received a denial of the I-485. We immediately prepared an appeal. Additionally, we filed a motion to reopen and sent a letter to the USCIS director in charge of San Diego pointing out that even if my client entered the US illegally she would remain eligible to adjust status under military parole in place. For several months, we did not hear anything. My client was nervous that she might be forced to return to Great Britain and separate from her husband and child. She was terrified at the prospect.
Just a few days ago we received the approval notice stating that the case was reopened, the denial was reversed and my client would receive her green card. The client was thrilled and relieved. She knows she can stay in the United States with her family indefinitely. If you are considering the marriage based green card process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the process and any issues that might arise.