Immigration Issues/husband overstayed vwp due to immigration lawyer lying about dates of filing aos!help what to do!
my name is Jessica and my husband and i need some advice.
he came into the us on the vwp from the U.K and we got married within the 90 day time frame before it expired. now, i hired a professional immigration lawyer way before we made plans for my husband to come here,i payed 900 dollars! we did everything according to his advice..got married..had his medical exam..got all the necessary paper work,cover letters,pictures,the necessary checks to pay the USCIS fees etc. I specifically kept asking him if there WAS A SPECIFIC TIME when everything had to be mailed off because i was worried about him overstaying his vwp and possibly breaking any rules and getting deported or something. but he said no,so trusting him i said ok. We ran into some financial problems and with the winter storm that just recently hit had to postpone sending the paperwork off and in short he has overstayed his vwp by 60 days. Now,through surfing Google i have found out that through recent court passing the USCIS has recently passed stuff that says people who come in of vwp has to send their paperwork off before their vwp expire or basically their paperwork gets denied, especially if they overstay, is this true? i have tried contacting my legal attorney but he has stopped all correspondence with me..which makes me think this to be true!
i was thinking of submitting his paperwork this week and submitting a letter with his paperwork explaining the situation as well as the emails between my legal attorney and me as proof that he lied and tricked us so that maybe USCIS will give us a chance, is this a good idea? i don't know what else to do, i am worried they will deny his application because we got scamed!
Eileen Chun-Fruto, Los Angeles immigration lawyer writes:
I'm sorry to hear about the scenario involving your husband's immigration case. It is true that in some jurisdictions in the US, the USCIS has issued rulings (and it's been affirmed) that visa waiver applicants for adjustment of status (ie a marriage based greencard application) will be denied if they file their cases after their visa waiver period expires.
There are several things that I want to point out to you, which is just general immigration law. Please remember that although I am an immigration attorney, I am not your attorney and that in Q&A websites like AllExperts, you can only rely on information given as general information. If you are in need of legal counsel, you must find an attorney who you can trust to help you and your husband. If your husband's case is denied, you will end up applying for his permanent residency again, but before an immigration judge and against a ICE trial attorney. And while self-research is important (I'd even say critical!), US immigration is complex and as you now know, the consequences are so severe...so my point is, while you have spent money already on your attorney, you will unfortunately, probably have to spend more money on an attorney who is really qualified to represent you and your husband, now that your husband is out of status.
ISSUE one: You mention that you hired a lawyer well before you made plans for your husband to come here. You (and your attorney) should know that utilizing the visa waiver program with the intent to come to the US for marriage, then apply for a greencard is prohibited. If the USCIS believes that an applicant for adjustment of status had such prohibited "preconceived intent," the USCIS could also make a finding of "visa fraud." This would also prevent an applicant for greencard from adjusting, unless a waiver for the visa fraud is also made by you, and then granted by USCIS.
ISSUE two: While you have poured good (and hard-earned) money into attorneys fees, folks out there should realize that attorneys who "dabble" in immigration and undercharge for their services might not be as qualified as some attorneys who focus solely on immigration law. Immigration law is a sub-specialty among lawyers and for good reason. The law is complex and ever-changing. While I'm never one to pass up a good deal, don't forget these two words when you're shopping around: buyer beware.
I would suggest that you contact your local bar association or your state bar and ask for a referral list of attorneys who focus on immigration law. You can also visit non-profit organizations in your area which provide services at low costs, or can refer you to attorneys who might be flexible with payment plans or lower- fees because they are committed to providing good lawyering to all clients of all means.
Again, I am upset for you and your husband in getting scammed. I hope that your attorney starts returning calls. If not, take the steps I mentioned above and find yourself a good, competent and trustworthy immigration attorney. And lastly, I don't think USCIS will consider ignorance of the law a defense, unless you can show your attorney to provided "ineffective assistance of counsel" and unfortunately, that is a really high standard. At any rate, contact your state bar and you can file a complaint and you can allege ineffective assistance of counsel if you believe you've been given erroneous advice.
Good luck. I'm sorry for your headache.