Legal Question in Immigration Law in California

I'm a US citizen and i recently married a Dutch citizen who is here on a visa waiver. We married before his visa waiver expired and I called uscis to find out what steps to take and was informed that we could apply for adjustment of status at any time. I contacted an attorney who tells me that I can no longer apply because his visa waiver expired 10 days ago and he must go back. Others tell me I should apply anyway but not in San Diego county. I'm now scared and confused. Can I apply for an AOS even if my husbands visa waiver expired 10 days ago?

Asked on 8/24/12, 10:43 pm

2 Answers from Attorneys

Marlene Hemmings Marlene Hemmings, Attorney at Law

Although there is case law stating you cannot adjust status, by virtue of marriage to a U.S. citizen, on a visa waiver beyond the 90 day admission period, 2011 policy is permitting this, as long as one is not subject to a Removal Order.

I would therefore advise a client of mine to go ahead & file, as long as the foreign spouse had no other inadmissibility issues, such as prior criminal record, removal, etc.

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Answered on 8/25/12, 9:59 am

Ajay Arora Ajay K. Arora, Attorney-at-Law, P.C.

Based on the facts of your case, assuming no derogatory information such as a criminal conviction or other source of inadmissibility, all sponsorship paperwork including your husband's adjustment of status application can be filed, and he can remain in the U.S. based on the filing and adjust status:

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Answered on 8/25/12, 5:30 pm

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