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30/60/90 rule

#16 sk28

sk28

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Posted 06 September 2007 - 08:39 PM

QUOTE (Niagaenola @ Sep 6 2007, 08:23 PM) <{POST_SNAPBACK}>
The cases that you have quoted are all about someone who came as a visitor andwas trying to become a student.... what has that got to do with someone who is doing AOS as the spouse of a USC???? nothing..... do some more research on 30/60/90 day rule with regards to a spouse of a USC and you will find that it does not apply.... this has been researched and researched again over the years and USCIS does not apply this court directive to any Marriage based AOS....


Kez


Oh my god, It is about intent and not about a petition.
  • 0

#17 rebeccajo

rebeccajo

    I have a short timeline. Let's not make it an issue.


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Posted 06 September 2007 - 09:33 PM

QUOTE (sk28 @ Sep 6 2007, 09:39 PM) <{POST_SNAPBACK}>
QUOTE (Niagaenola @ Sep 6 2007, 08:23 PM) <{POST_SNAPBACK}>
The cases that you have quoted are all about someone who came as a visitor andwas trying to become a student.... what has that got to do with someone who is doing AOS as the spouse of a USC???? nothing..... do some more research on 30/60/90 day rule with regards to a spouse of a USC and you will find that it does not apply.... this has been researched and researched again over the years and USCIS does not apply this court directive to any Marriage based AOS....


Kez


Oh my god, It is about intent and not about a petition.


Perhaps. But the fact remains that different sets of laws governs different types of petitions. The INA differentiates between the various types of immigrant categories in loads of mysterious and conflicting ways. So many mysterious ways that immigration law is regarded as one of the most complex types of law that can be practiced, and also why attorneys will usually choose ONE immigrant category as their specialty.

What's a sin under one category ain't necessarily so under another.
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#18 kitkat1

kitkat1

    The Original KitKat and Queen of Accurate Waiver Information



Posted 06 September 2007 - 09:34 PM


http://foia.state.go...am/0940063N.pdf

9 FAM 40.63 N4.7-1 Applying 30/60 Day Rule When Alien Violates Status
(TL:VISA-313; 08-27-2001)
a. The consular officer should apply the 30/60-day rule if an alien
states on his or her application for a B-2 visa, or informs an immigration officer
at the port of entry, that the purpose of his or her visit is tourism, or to
visit relatives, etc., and then violates such status by:
(1) Actively seeking unauthorized employment and, subsequently, becomes
engaged in such employment;
(2) Enrolling in a program of academic study without the benefit of the
appropriate change of status;
(3) Marrying and takes up permanent residence, or
(4) Undertakes any other activity for which a change of status or an adjustment
of status would be required, without the benefit of such a change
or adjustment.


Note the words: "The Consular officer should apply....". This is not something applied by a USCIS officer at an AOS interview.

Note that FAM directives do not equal law.

This is a STATE DEPARTMENT directive regarding whether or not an advisory opinion is required to support a fraud or misrepresentation finding.
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#19 Kez/JWolf

Kez/JWolf

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Posted 06 September 2007 - 09:35 PM

QUOTE (sk28 @ Sep 6 2007, 09:39 PM) <{POST_SNAPBACK}>
QUOTE (Niagaenola @ Sep 6 2007, 08:23 PM) <{POST_SNAPBACK}>
The cases that you have quoted are all about someone who came as a visitor andwas trying to become a student.... what has that got to do with someone who is doing AOS as the spouse of a USC???? nothing..... do some more research on 30/60/90 day rule with regards to a spouse of a USC and you will find that it does not apply.... this has been researched and researched again over the years and USCIS does not apply this court directive to any Marriage based AOS....


Kez


Oh my god, It is about intent and not about a petition.


You believe what you want to believe..... I for one know that the 30/60/90 day rule is a court directive and does not apply to marriage based AOS.... and yes it does come down to intent and as I have said it is up to USCIS to prove that you had intent..... and they do not use the so called 30/60/90 day rule....

Unless of course you can quote a USCIS guideline that says they do....

Kez
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#20 sk28

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Posted 07 September 2007 - 01:45 AM

QUOTE
You believe what you want to believe..... I for one know that the 30/60/90 day rule is a court directive and does not apply to marriage based AOS.... and yes it does come down to intent and as I have said it is up to USCIS to prove that you had intent..... and they do not use the so called 30/60/90 day rule....

Unless of course you can quote a USCIS guideline that says they do....

Kez



The USCIS does preform Department of state check with an embasy that issued a visa. The form G-325A has a consulat page, that goes to an embasy that had a visa issued.

9 FAM 40.63 N4.7 Applying the 30/60 Day Rule
(TL:VISA-342; 01-08-2002)
a. In determining whether a misrepresentation has been made, some of the
most difficult questions arise from cases involving aliens in the United
States who conduct themselves in a manner inconsistent with
representations they made to the consular officers concerning their
intentions at the time of visa application. Such cases occur most
frequently with respect to aliens who, after having obtained visas as
nonimmigrants, either:
(1) Apply for adjustment of status to permanent resident; or
(2) Fail to maintain their nonimmigrant status (for example, by
engaging in employment).
b. To address this problem, the Department developed the 30/60-day rule.
This rule is intended to facilitate adjudication of these types of cases
consistent with the statutory mandates.
c. Aliens who apply for adjustment of status pursuant to the INA are within
the jurisdiction of the Immigration and Naturalization Service unless the
application is abandoned upon the departure of the alien from the United
States. Upon receipt of a notice of application for adjustment of status
Form G-325A, Biographic Information, therefore, it would not be
appropriate for a consular officer to seek the Department's concurrence in
a finding of ineligibility since such a finding would not be binding upon the
INS. Instead, the post should bring available derogatory information to
the attention of the appropriate INS office by a VISAS DECEMBER cable
.
[See 9 FAM 40.63 PN2.]

This means that DOS informs USCIS of derogatory actions and it is up to the USCIS office to investigate the issue

Edited by sk28, 07 September 2007 - 01:46 AM.

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#21 Kez/JWolf

Kez/JWolf

    Life is but a passing moment!


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Posted 07 September 2007 - 05:56 AM

QUOTE (sk28 @ Sep 7 2007, 02:45 AM) <{POST_SNAPBACK}>
QUOTE
You believe what you want to believe..... I for one know that the 30/60/90 day rule is a court directive and does not apply to marriage based AOS.... and yes it does come down to intent and as I have said it is up to USCIS to prove that you had intent..... and they do not use the so called 30/60/90 day rule....

Unless of course you can quote a USCIS guideline that says they do....

Kez



The USCIS does preform Department of state check with an embasy that issued a visa. The form G-325A has a consulat page, that goes to an embasy that had a visa issued.

9 FAM 40.63 N4.7 Applying the 30/60 Day Rule
(TL:VISA-342; 01-08-2002)
a. In determining whether a misrepresentation has been made, some of the
most difficult questions arise from cases involving aliens in the United
States who conduct themselves in a manner inconsistent with
A. You entered the United States in transit without a visa;
B. You entered the United States as a nonimmigrantcrewman;representations they made to the consular officers concerning their
intentions at the time of visa application. Such cases occur most
frequently with respect to aliens who, after having obtained visas as
nonimmigrants, either:
(1) Apply for adjustment of status to permanent resident; or
(2) Fail to maintain their nonimmigrant status (for example, by
engaging in employment).
b. To address this problem, the Department developed the 30/60-day rule.
This rule is intended to facilitate adjudication of these types of cases
consistent with the statutory mandates.
c. Aliens who apply for adjustment of status pursuant to the INA are within
the jurisdiction of the Immigration and Naturalization Service unless the
application is abandoned upon the departure of the alien from the United
States. Upon receipt of a notice of application for adjustment of status
Form G-325A, Biographic Information, therefore, it would not be
appropriate for a consular officer to seek the Department's concurrence in
a finding of ineligibility since such a finding would not be binding upon the
INS. Instead, the post should bring available derogatory information to
the attention of the appropriate INS office by a VISAS DECEMBER cable
.
[See 9 FAM 40.63 PN2.]

This means that DOS informs USCIS of derogatory actions and it is up to the USCIS office to investigate the issue


well that may apply if you came on a B1/B2 visa and are not married to a USC.... because if you are then unauthorized work can not be held against you and is not grounds for a denial of AOS...

the above quote is old and is has not been updated you can tell this by the fact that they talk about INS also this is a Department of State directive and nothing to do with USCIS who do not apply the so called 30/60/90 day rule.... department of state has no jurisdiction over USCIS as it says in your quote and USCIS do not go asking consular staff if any information is available to prove that a person had intent.... and if you came to the US on a VWP or from canada then you will not have had any sort of contact with the DOS or consular officers...

USCIS uses the Law... which say that unauthorized work or an overstay can not be used against the spouse of a USC.... Read the instruction for filling for I-130 and AOS you will see who is allowed to do AOS and who is not....

QUOTE
10. Who Is Not Eligible to Adjust Status.

Unless you are applying for creation of record based on continuous residence since before January 1, 1972, or adjustment of status under a category in which special rules apply (such as 245(i) adjustment, asylum adjustment, Cuban adjustment, special immigrant juvenile adjustment, or special immigrant military personnel adjustment), you are not eligible for adjustment of status if any of the following apply to you:

A. You entered the United States in transit without a visa;
B. You entered the United States as a non immigrant crewman;
C. You were not admitted or paroled following inspection by an immigration officer;
D. Your authorized stay expired before you filed this application;
E. You were employed in the United States, without USCIS authorization, prior to filing this application;
F. You failed to maintain your non immigrant status, other than through no fault of your own or for technical reasons; unless you are applying because you are:
1. An immediate relative of a United States citizen(parent, spouse, widow, widower or unmarried child under 21 years old);
2. A K-1 fianc(e) or a K-2 fianc(e) dependent who married the United States petitioner within 90 days of admission; or
3. An H or I non immigrant or special immigrant(foreign medical graduates, international organization employees or their derivative family members)
;


http://www.uscis.gov.../i-485instr.pdf

read the USCIS rules because they are what is used when you file for AOS from within the US.... not the DOS directives that consular officer can use....

Kez
  • 0

#22 Killer_Clown_2009

Killer_Clown_2009

    Platinum Member



Posted 07 September 2007 - 06:59 AM

QUOTE (sk28 @ Sep 6 2007, 07:46 PM) <{POST_SNAPBACK}>
QUOTE (kitkat1 @ Sep 6 2007, 06:03 PM) <{POST_SNAPBACK}>
I couldn't find whatever part you we attempting to point out.

The case is from 1975 - not exactly current information.


It doesnt matter how old it is it is a court case it could be 100 years old and if court of appeals haven't overruled or the Supreme Court, the case can be used on any court in the US. My point: if you file for AOS and you are on VWP or B1/B2. Wait for a while before you file so you do not raise suspicion, as USCIS could try to prove immigration intent.



Er, that case pertains to someone applyingto change status to a STUDENT. AOS due to marriage is a whole different thing.
  • 0
2001 Met
2005 Married

I-485/I-130
12/06/2006-------Mailed I-130/1-485
12/16/2006--------Recieved NOA 1 (I-130 & I-485)
12/18/2006--------Touched I-130/I-485
01/20/2007--------Biometrics
05/10/2007 -- Interview, Approved!
05/22/2007 GREEN CARD arrives!!!
02/2009 - File to lift conditions


I-765

12/14/2006--- Mailed EAD App.
01/20/2007--- Biometrics
02/09/2005-------Sent in request to Congressional office for assistance with expediting EAD.
02/13/2007 -------- EAD Approved!
02/26/2007 - ------EAD received

Removal of Conditions:

05/12/2009 -- Overnighted application by USPS express mail (VSC).
05/14/2009 -- Green Card expired.
05/23/2009 --- Check cleared bank.
05/26/2009 -- Received NOA (NOA date May 15, 2009, guess they aren't deporting me).
05/29/2009- Biometrics Notice date
06/01/2009- Received Biometrics Letter
06/18/2009 - Biometrics
09/23/2009 - date of decision to approve (letter received), just waiting for card. No online updates whatsoever.

#23 Killer_Clown_2009

Killer_Clown_2009

    Platinum Member



Posted 07 September 2007 - 07:12 AM

Preconceived intent generally is not a problem for the spouse of a U.S. citizen - go do some research on that.
  • 0
2001 Met
2005 Married

I-485/I-130
12/06/2006-------Mailed I-130/1-485
12/16/2006--------Recieved NOA 1 (I-130 & I-485)
12/18/2006--------Touched I-130/I-485
01/20/2007--------Biometrics
05/10/2007 -- Interview, Approved!
05/22/2007 GREEN CARD arrives!!!
02/2009 - File to lift conditions


I-765

12/14/2006--- Mailed EAD App.
01/20/2007--- Biometrics
02/09/2005-------Sent in request to Congressional office for assistance with expediting EAD.
02/13/2007 -------- EAD Approved!
02/26/2007 - ------EAD received

Removal of Conditions:

05/12/2009 -- Overnighted application by USPS express mail (VSC).
05/14/2009 -- Green Card expired.
05/23/2009 --- Check cleared bank.
05/26/2009 -- Received NOA (NOA date May 15, 2009, guess they aren't deporting me).
05/29/2009- Biometrics Notice date
06/01/2009- Received Biometrics Letter
06/18/2009 - Biometrics
09/23/2009 - date of decision to approve (letter received), just waiting for card. No online updates whatsoever.

#24 Killer_Clown_2009

Killer_Clown_2009

    Platinum Member



Posted 07 September 2007 - 07:25 AM

Here is the case law, right from the BIA:

Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980)


According to Matter of Cavazos, in the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain.
  • 0
2001 Met
2005 Married

I-485/I-130
12/06/2006-------Mailed I-130/1-485
12/16/2006--------Recieved NOA 1 (I-130 & I-485)
12/18/2006--------Touched I-130/I-485
01/20/2007--------Biometrics
05/10/2007 -- Interview, Approved!
05/22/2007 GREEN CARD arrives!!!
02/2009 - File to lift conditions


I-765

12/14/2006--- Mailed EAD App.
01/20/2007--- Biometrics
02/09/2005-------Sent in request to Congressional office for assistance with expediting EAD.
02/13/2007 -------- EAD Approved!
02/26/2007 - ------EAD received

Removal of Conditions:

05/12/2009 -- Overnighted application by USPS express mail (VSC).
05/14/2009 -- Green Card expired.
05/23/2009 --- Check cleared bank.
05/26/2009 -- Received NOA (NOA date May 15, 2009, guess they aren't deporting me).
05/29/2009- Biometrics Notice date
06/01/2009- Received Biometrics Letter
06/18/2009 - Biometrics
09/23/2009 - date of decision to approve (letter received), just waiting for card. No online updates whatsoever.

#25 Caladan

Caladan

    Star Member



Posted 07 September 2007 - 08:31 AM

QUOTE (sk28 @ Sep 6 2007, 07:46 PM) <{POST_SNAPBACK}>
QUOTE (kitkat1 @ Sep 6 2007, 06:03 PM) <{POST_SNAPBACK}>
I couldn't find whatever part you we attempting to point out.

The case is from 1975 - not exactly current information.


It doesnt matter how old it is it is a court case it could be 100 years old and if court of appeals haven't overruled or the Supreme Court, the case can be used on any court in the US. My point: if you file for AOS and you are on VWP or B1/B2. Wait for a while before you file so you do not raise suspicion, as USCIS could try to prove immigration intent.


There's nothing in the case you posted that says anything about 30/60/90 rule, or adjustment of status based on marriage, or anything pertaining to time after entry and marriage at all. It does NOT support your assertion about intent and the 30/60/90 rule.

To the extent that there is a rule, a couple things to keep in mind:
1) It's a guideline, not a law, intended for Department of State employees. State and USCIS are not the same organization nor under the same umbrella, and while they can share information, they are not bound by each other's guidelines.
2) Reading over the pdf, the rule is basically 'when can we expect a person to reasonably change his mind and when is misrepresentation a reasonable conclusion, and when is it worth for us to pursue.' Let's be clear on what this rule is not:
a) It is NOT saying that material misrepresentation is automatically found if the person violates status within 30 days (if you read the whole pdf, there's a bit on major life events and how marriage is something that might change one's immigrant intent AFTER entry)
b ) It is NOT saying that if they have clear evidence of material misrepresentation that they will ignore it if the change didn't occur till day 61.
c) It is NOT saying that adjustment of status based on marriage is bound by these rules. Again. The Department of State and USCIS are two separate animals.

This doesn't mean that I think adjusting off of the VWP is risky or anything. Personally, I'd be willing to bet that USCIS doesn't much care, at least not to the point of bothering to deport the spouse of a citizen on anything less than very clear material misrepresentation. But this 30/60/90 stuff doesn't appear to be talking about adjustment of status or USCIS.
  • 0
AOS
-
Filed: 8/1/07
NOA1:9/7/07
Biometrics: 9/28/07
EAD/AP: 10/17/07
EAD card ordered again (who knows, maybe we got the two-fer deal): 10/23/-7
Transferred to CSC: 10/26/07
Approved: 11/21/07

#26 kitkat1

kitkat1

    The Original KitKat and Queen of Accurate Waiver Information



Posted 07 September 2007 - 11:18 AM

sk28, you don't get it. You're quoting information that is not applicable and does not pertain to USCIS.
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