Huge Dilema/Concerns

[john_and_marlene 162]

I can see you're not going to be content until I can produce an actual court case that meets your very narrow criteria. Let me see if I've got this straight:

You are looking for a case where the precedent rulings in Cavazos and Ibrahim have been violated and the denial was upheld on appeal even though no other adverse factors were found. Happy hunting.

[JimVaPhuong 4,863]

You are looking for a case where the precedent rulings in Cavazos and Ibrahim have been violated and the denial was upheld on appeal even though no other adverse factors were found. Happy hunting.

We're not arguing about whether the precedent cases have been violated, and whether the violations were upheld on appeal. We're talking about your blanket statements in your first post in this thread:

Regarless of your intent on entry' date=' it won't be used as a reason to deny an adjustment of status.

...

They need offer no proof of intent. The reason it is not normally questioned is that it cannot be used as the reason for denial. Adverse factors other than prior intent, working without authorization or overstays must be found as those 3 factors cannot be the reason for denial of an adjustment by the immediate family member of a USC. If they are used without other adverse factors, it would be a err on the part of the USCIS.[/quote']

I already gave you a case where the applicant was found to have committed the ACT of entering the US with preconceived intent, and that the ACT alone was considered to constitute a material misrepresentation - fraud. Your response was that he was denied for the fraud rather than the preconceived intent, in spite of the fact that the ACT of entering with preconceived intent was what resulted in the accusation of fraud. You then tried to dance around technicalities, claiming that the fraud occurred when he applied for the visa, even though the text of the decision made it clear that the district director and AAO determined it was his failure to disclose his intent to the immigration officer on entry that constituted the fraud.

You're saying that USCIS won't even look for preconceived intent because it can't be used to deny the application. I'm saying that they DO look for preconceived intent, and if they determine it constitutes a willful misrepresentation then they WILL deny the application. I can point you to dozens of attorney's websites that give the same opinion, citing the dangers of getting caught in USCIS' 30/60/90 day rule. I can even point to at least a half dozen who specifically warn that a waiver will be required to overcome the fraud ruling if the AOS is denied. In fact, the only time they tell you that you DON'T have to worry about preconceived intent is if you entered with an immigrant or dual intent visa.

There is a technical caveat in your claim. Yes, if your AOS application is denied then preconceived intent will not be cited as the only reason for denial, but evidence of preconceived intent CAN result in a denial, and further result in an inadmissibility that requires a waiver to overcome. I still say that telling people otherwise is dangerous.

[JimVaPhuong 4,863]

Why do you keep wanting to put your words into my mouth? I have never said that prior intent to immigrate with a tourist visa was not fraud. It always is. However, I have not moved from my position (and it's the position of the court) that it cannot be used to deny the adjustment for the immediate family member of a USC. Material misrepresentation can be used for denial--always. Why you cannot seem to separate the idea of the intent and the material misrepresentation is beyond me. A finding of prior intent does not equate to material misrepresentation. A person can be guilty of one, both or none--they are not linked.

I now appears to me that your arguements all along have been based on what you think should be true and what you think should be the result rather than objectively looking at reality. I guess you won't rest until you have convinced everyone that it is futile to apply for adjustment with prior intent even though the overwhelming anecdotal evidence, based on the many successful adjustments, and the precedent rulings from the BIA disagree with your point of view.

My arguments, like yours, are based on what I read. There is little case law on the public records which are available regarding this subject. Routine USCIS cases are not a matter of public record, and cases which appear in front of an immigration judge are not readily available on the internet. What are left are the cases that make it as far as the AAO, BIA, or federal appeals court.

As I said in my previous post, the matter of preconceived intent appears to be serious enough that many attorneys specifically warn about it. I've yet to find one who shared your opinion that it isn't a factor in a case of an immediate relative of a US citizen. I have to presume that they have more experience with these cases than you or I.

[john_and_marlene 162]

I already gave you a case where the applicant was found to have committed the ACT of entering the US with preconceived intent, and that the ACT alone was considered to constitute a material misrepresentation - fraud.

You gave me two cases. One was overturned on appeal as an error in application of discretion, the other was from 1977--before the precedent was set.

[john_and_marlene 162]

As I said in my previous post, the matter of preconceived intent appears to be serious enough that many attorneys specifically warn about it. I've yet to find one who shared your opinion that it isn't a factor in a case of an immediate relative of a US citizen. I have to presume that they have more experience with these cases than you or I.

Where do you get your information regarding attorney warnings? Based on the posts here on VJ from couples that have adjusted status from nonimmigrant visas, they have been advised by their attorneys that there would be no problem. In fact, there has not been a single post where someone has stated that they personally were even questioned regarding intent. There are, however, many cases here of successful adjustment.

You aren't going to find recent cases where this matter comes before an immigration judge because they aren't getting denied.

[JimVaPhuong 4,863]

You gave me two cases. One was overturned on appeal as an error in application of discretion, the other was from 1977--before the precedent was set.

The AAO case I cited was not overturned on appeal - it was upheld, and it's from January, 2005.

http://www.uscis.gov/err/H2%20-%20Waiver%20for%20Excludability/Decisions_Issued_in_2005/JAN282005_18H2212.pdf

[JimVaPhuong 4,863]

Where do you get your information regarding attorney warnings? Based on the posts here on VJ from couples that have adjusted status from nonimmigrant visas, they have been advised by their attorneys that there would be no problem. In fact, there has not been a single post where someone has stated that they personally were even questioned regarding intent. There are, however, many cases here of successful adjustment.

You aren't going to find recent cases where this matter comes before an immigration judge because they aren't getting denied.

Bullet list items 3 through 5:

http://www.visapro.com/Immigration-Articles/?a=1252&z=36

Fifth paragraph from the end:

http://www.scagliarinilaw.com/marriagevisa.html

Four lawyers responded to this question, three of them addressed preconceived intent, especially how a VWP entrant has no recourse if they are denied for this:

http://www.avvo.com/legal-answers/us-immigration-i-130-84981.html

Read the section on "Risky Conduct":

http://www.montaglaw.com/articles/articles_21.html

This is from the first two pages of google search. Shall I continue?

[john_and_marlene 162]

Bullet list items 3 through 5:

http://www.visapro.com/Immigration-Articles/?a=1252&z=36

Fifth paragraph from the end:

http://www.scagliarinilaw.com/marriagevisa.html

Four lawyers responded to this question, three of them addressed preconceived intent, especially how a VWP entrant has no recourse if they are denied for this:

http://www.avvo.com/legal-answers/us-immigration-i-130-84981.html

Read the section on "Risky Conduct":

http://www.montaglaw.com/articles/articles_21.html

This is from the first two pages of google search. Shall I continue?

You are still missing the point of what the denial is for. It is not for the prior intent even though the prior intent may lead to a discovery of VWP misuse. You fashioned your sentence "three of them addressed preconceived intent, especially how a VWP entrant has no recourse if they are denied for this", but in the portion "denied for this", the "this" is the fraudulent use of the VWP.

I will admit that VWP entrants are in a more precarious situation. They sign away certain rights in order to use the VWP for each entry making it easier to show fraudulent use of the benefit. In these cases, the risk is associated with the fraudulent use of the VWP.

I would concede that preconcieved intent to use the VWP for entry carries more risk than for other types of entry, although I would not assign a huge risk level warranting a declaration that it is somehow so highly risky as to be unthinkable. Present what the risk is and let each person determine if they fall within that risk and whether they are willing to accept it.

I often see statements made in posts here that say if you were already married when you enter the U.S. as a nonimmigrant that prior intent supposition and denial are automatic. They are not and should not be presented that way. There was a woman here a year or so ago who had been living with her USC husband outside the U.S. and they came to visit his sick mother. After they got here the mother's health turned even worse and then ended up deciding to stay and take care of her. Overwhelmingly, the responses were that she would be denied because of some theory that marriage automatically proved prior intent. I would certainly like to temper automatic responses like that. She certainly qualified for adjustment.

In order to present an accurate picture, accuracy is paramount. If a denial would be based on material misrepresentation then describe what constitutes the material misrepresentation and what might lead to that misrepresentation to be explored. By declaring that the prior intent was the reason for denial, the impression is left that prior intent will always be cause for denial. In these cases the belief that there was prior intent may lead to an investigation whether material misrepresentation was committed leading to a denial based on the misrepresentation. In some cases they will find misrepresentation and in some not. So certainly in some cases prior intent leads to denial and in some not. The distinction then is not the prior intent, but the finding of misrepresentation. At least be accurate as to why someone might be denied.

[JimVaPhuong 4,863]

You are still missing the point of what the denial is for. It is not for the prior intent even though the prior intent may lead to a discovery of VWP misuse. You fashioned your sentence "three of them addressed preconceived intent, especially how a VWP entrant has no recourse if they are denied for this", but in the portion "denied for this", the "this" is the fraudulent use of the VWP.

I will admit that VWP entrants are in a more precarious situation. They sign away certain rights in order to use the VWP for each entry making it easier to show fraudulent use of the benefit. In these cases, the risk is associated with the fraudulent use of the VWP.

I would concede that preconcieved intent to use the VWP for entry carries more risk than for other types of entry, although I would not assign a huge risk level warranting a declaration that it is somehow so highly risky as to be unthinkable. Present what the risk is and let each person determine if they fall within that risk and whether they are willing to accept it.

I often see statements made in posts here that say if you were already married when you enter the U.S. as a nonimmigrant that prior intent supposition and denial are automatic. They are not and should not be presented that way. There was a woman here a year or so ago who had been living with her USC husband outside the U.S. and they came to visit his sick mother. After they got here the mother's health turned even worse and then ended up deciding to stay and take care of her. Overwhelmingly, the responses were that she would be denied because of some theory that marriage automatically proved prior intent. I would certainly like to temper automatic responses like that. She certainly qualified for adjustment.

In order to present an accurate picture, accuracy is paramount. If a denial would be based on material misrepresentation then describe what constitutes the material misrepresentation and what might lead to that misrepresentation to be explored. By declaring that the prior intent was the reason for denial, the impression is left that prior intent will always be cause for denial. In these cases the belief that there was prior intent may lead to an investigation whether material misrepresentation was committed leading to a denial based on the misrepresentation. In some cases they will find misrepresentation and in some not. So certainly in some cases prior intent leads to denial and in some not. The distinction then is not the prior intent, but the finding of misrepresentation. At least be accurate as to why someone might be denied.

Only one of those four links had anything to do with VWP, and that was because it was a Q&A board for people to ask questions and get answers from immigration lawyers. That particular question was from a person who entered using the VWP. Claiming that the risk is associated with "fraudulent use of the VWP" is a red herring. In every case where preconceived intent is a potential risk it is associated with fraudulent use of whatever non-immigrant entry pass was used, whether VWP, B2, or whatever. Only immigrant and dual intent visas don't carry this risk. The only additional risk with a VWP entrant is that they cannot appeal the decision.

You are also missing MY point. I never claimed someone would be denied solely for preconceived intent. I said it was an adverse factor, they WILL look for it, and it could LEAD to a denial. You seem to be of the opinion that preconceived intent automatically becomes a non-issue with an immediate relative of a US citizen, so they won't even bother to look for it. The case law indicates otherwise. They DO look for it, and if it's the only adverse factor they find then they'll approve the AOS. If they conclude the intent constituted a misrepresentation then they WILL deny.

Regarding automatic presumption of prior intent, I've seen mixed opinions on this. The 30/60/90 rule is a matter of policy for USCIS, and not a matter of law. Many attorneys cite that policy when advising immigrants who entered with a non-immigrant entry pass, married a US citizen, and are now seeking to adjust status. If seen at least one attorney who says that USCIS does not apply this policy for the immediate relative of a US citizen. However, the policy is outlined in the FAM, and there is no explicit exception for the spouse of a US citizen. This is why many attorneys tell their clients not to marry and attempt to adjust status in the first 30 or 60 days after their arrival.

In no way did I ever imply that there is any sort of "automatic denial", and I know that the vast majority of adjustments are approved in these circumstances. I cannot, in good conscience, advise someone that their preconceived intent will not be a problem when there is strong evidence of their intent. I strongly believe it can lead to a finding of misrepresentation and a denial. I showed you one recent AAO case where it actually happened. I gave you a short list of attorneys who warn about it (and can produce many more on request). I'm not asking you to reverse your position on preconceived intent, and start telling everyone it's a huge risk, but I do think you should add the caveat to your statement that there IS a risk of a finding of material misrepresentation. Telling people "You can't be denied for it" is misleading because it CAN lead to a denial.