Potential Issue: Visa Waiver Entry – Overstay / Response to Notice of Intent to Deny
Applicant/Beneficiary – Spanish
Location: Cleveland, Ohio
Our client entered the United States on April 11, 2010 from Spain under the visa waiver program. When he entered the United States, he did not have any intention to get married. In fact, he came to the United States to obtain a divorce from his former wife who was residing in the United States, and wished to come back home soon after. As a Visa Waiver Entrant, he was only authorized to remain in the United States until July 10, 2010.
After he got divorced from his former wife in the United States, our client married his U.S. citizen spouse on June 2, 2010. 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.
Since our client resided in Cleveland, Ohio, his application had a better chance compared to states under the 9th Circuit (see Momeni v. Chertoff). However, it was quite foreseeable that the USCIS field office will question the validity of the marriage between our client and his wife because of the existing language barrier between the couple. The US Citizen spouse speaks really little Spanish while the Spanish beneficiary speaks little English.
Our office filed the I-130 Petition and I-485 Adjustment of Status Application on September 3, 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. We also argued that the marriage occurred prior to the expiration of the visa waiver status and that extraneous circumstances caused the delay in the filing of the applications.
Prior to the interview, Attorney Sung Hee (Glen) Yu from our office thoroughly prepared our client for their USCIS adjustment of status interview. On December 20, 2010, Attorney Yu accompanied our client and his wife at the Cleveland USCIS office for his adjustment interview. The interview took two and a half hours and the officer thoroughly asked our client and his wife about the bona fide nature of the marriage and the language barrier issue.
On March 9, 2011, the USCIS issued a Notice of Intent to Deny (NOID). The NOID claimed that there was substantial and probative evidence that the marital union between the Petitioner and Beneficiary is not bona fide. As expected, the language barrier issue between our client and his wife was critical. They also pointed out the short time difference between the beneficiary’s divorce and subsequent marriage.
In response to the USCIS’s NOID, our office re-interviewed both the Petitioner and the Beneficiary, addressing the issues pointed out in the NOID and drafting an extensive affidavit. Multiple supporting documents and a six-page affidavit from our client were all included as well as letters from the U.S Citizen wife’s family members, joint bank statements, joint lease, utility bills, and several pictures of our client and his wife in several occasions with different people. Several legal authorities were cited based on particular issues discussed, and on March 31, 2011, we filed the Response to NOID prior to the 30-day deadline.
On April 5, 2011, less than a week from our Response, the USCIS approved our client’s case. We overcame both the visa waiver overstay and the bona fide marriage issues and as a result, both the I-130 Petition and I-485 Green Card Application were approved. Our client is now a green card holder.
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