married to usc and am visiting dont wanna leave

[cnfsdcanadian 1]

I live in canada and am visiting my usc husband in the u.s. with our children. We come to visit him every 6 months and this time I don't want to go back. Can I apply for an adjustment of status while I am here visiting so we don't have to leave? I came here with no intentions of staying. We are just tired of always being apart.

[Krikit 1,163]

Yes, you can apply to adjust status. You will find a lot of helpful information in this forum. Welcome to VJ.

Also, drop by the Canada Regional Forum. There are many members there who have been in your same situation.

Edited July 9, 2010 by Krikit

[cnfsdcanadian 1]

Thank you so much.

I am just worried that they will think that I came here with the "intent" on immigrating.

[Krikit 1,163]

I guess if you wrapped up your life in Canada (sold your house/terminated rental agreement; closed your accounts; brought all belongings) prior to coming here you'd have cause for some concern. I'm sure someone will be along shortly to set your mind at ease and guide you through the process. Don't forget to visit the Canada Forum.

[cnfsdcanadian 1]

All my belongings are still in Canada. I still have my bank accounts.

[Krikit 1,163]

There you go. You're on your way.

I know someone will correct me if I am wrong here, but it seems an awful lot of people aren't even asked to prove non intent to immigrate. Your visit track record shows it, as well as the fact that the CBP Officer had no cause for alarm and authorized your entry.

[JimVaPhuong 4,863]

Preconceived intent is always suspected when someone attempts to adjust status after entering with a non-immigrant entry pass or visa. In the majority of cases, it never goes beyond a suspicion, and it doesn't result in a denial, but the risk is always there.

Adjustment of status is discretionary, and the immigration officer is supposed to weigh the positive and negative factors to determine whether to approve AOS. Preconceived intent is a negative factor. Being the immediate relative of a US citizen is a positive factor. Taken by themselves, the positive factor of being the immediate relative of a US citizen outweighs the negative factor of preconceived intent. This is USCIS policy based on precedent case law. They will not deny the adjustment of status simply because they suspect preconceived intent. Even if they have strong evidence of preconceived intent, they won't deny the AOS solely for this reason. However, if they have evidence of preconceived intent, and they ALSO have evidence that the alien lied about their intent to a US immigration official (consular officer, CBP officer, etc.) then the additional negative factor of the material misrepresentation would be enough to deny to the AOS. Further, the material misrepresentation could result in the alien receiving a lifetime ban from the US.

Even though you had no intention to immigrate when you entered, there is always a possibility that USCIS could determine you did. Of course, they would be wrong, but the US government is frequently wrong and it doesn't see to phase them. They can't read your mind when you enter the US, so they have to look for evidence. Sometimes there will be evidence that appears to contradict what the alien's real intentions are, and this is when you run into problems.

Generally, the risk of them falsely concluding you had preconceived intent AND that you lied about your intent when you entered is small, but you have to think about your own situation in evaluating the risk. When you entered the US, how thoroughly were you inspected? Did they search your luggage? If so, did you bring anything that would not normally be required by a visiting foreigner, but WOULD be required to adjust status, such as documents or forms? Did they ask you any questions about your reasons for visiting the US? Did they specifically ask if you intended to immigrate, or ask you to sign any documents declaring your non-immigrant intent?

Remember that they need evidence of preconceived intent as well as evidence you lied about your intent in order to use this as a reason to deny your AOS. Only you can decide whether there is any risk they have this evidence. If you think they might, then it would be better to go back to Canada and pursue a CR1.

[cnfsdcanadian 1]

Thank you so much. That info is very useful. What kind of evidence do they look for?

How long does the IR-1 visa take?

[kennym 275]

JimVaPhuong - You have a real knack for delivering the issues clearly and concisely...

What a gift!

Well delivered and comprehensive!!!

[JimVaPhuong 4,863]

Thank you so much. That info is very useful. What kind of evidence do they look for?

How long does the IR-1 visa take?

TSA routinely inspects luggage when people enter the US. They often toss a light blue card into your bag so that you know it's been inspected. My luggage is inspected almost every time I enter the US. In addition, CBP can choose to inspect your luggage when leaving the airport. I usually get directed around this checkpoint, but a good percentage of people have to pass through it.

Anything they find that indicates you intended to do anything other than visit and return, or that indicates you might intend to stay, would be evidence of preconceived intent. I gave a broad example, but to be more specific - birth or divorce certificates are needed to adjust status, but are NOT needed for a temporary visit to the US. The same is true of any US government forms that would be required in an AOS package. Other suspicious items would be receipts indicating you'd closed your bank accounts, or a letter of resignation indicating you'd quit your job, or any documents indicating you'd sold any property. Some of these things can be discovered during the background checks they perform, and wouldn't require anything in your luggage.

Think about what someone would discover if they knew everything that was in your luggage, and everything you had done prior to coming to the US. Would they conclude you were just going for a temporary visit, or perhaps moving permanently to the US?

An IR1 would take about a year, give or take.

JimVaPhuong - You have a real knack for delivering the issues clearly and concisely...

What a gift!

Well delivered and comprehensive!!!

Thanks!

[cnfsdcanadian 1]

Thanks for all thee info. Do you know what kinds of background checks they do when processing your application? What types of things do they look for?

[JimVaPhuong 4,863]

Thanks for all thee info. Do you know what kinds of background checks they do when processing your application? What types of things do they look for?

It depends. They have ready access to a lot of information. They will definitely run a check on both you and your husband through US government and law enforcement databases. For you, they'll be looking for anything that might make you inadmissible, but it's unlikely they'll find anything or you probably wouldn't have been admitted into the US. They may also decide to make a few phone calls to Canada to check out your employment history, or verify your last place of residence. They'll also look at the CBP entry record when you entered the US (depending on how you entered, there may not be a record to look at). For your husband, they'll look for anything that might make him ineligible to petition for a foreign spouse, such as a conviction that falls under the Adam Walsh Act (mostly sexual offenses involving children). They'll also look at any prior history he might have as a petitioner or sponsor with US immigration. They may try to confirm documents he submits as proof of his citizenship, documents of any prior divorces, or even your marriage certificate.

How little or how much they decide to dig is really up to them. AOS is discretionary, and the immigration officer has a lot of leeway to investigate pretty much whatever he/she thinks needs to be investigated.

[GabiandVi 34]

Preconceived intent is always suspected when someone attempts to adjust status after entering with a non-immigrant entry pass or visa. In the majority of cases, it never goes beyond a suspicion, and it doesn't result in a denial, but the risk is always there.

Adjustment of status is discretionary, and the immigration officer is supposed to weigh the positive and negative factors to determine whether to approve AOS. Preconceived intent is a negative factor. Being the immediate relative of a US citizen is a positive factor. Taken by themselves, the positive factor of being the immediate relative of a US citizen outweighs the negative factor of preconceived intent. This is USCIS policy based on precedent case law. They will not deny the adjustment of status simply because they suspect preconceived intent. Even if they have strong evidence of preconceived intent, they won't deny the AOS solely for this reason. However, if they have evidence of preconceived intent, and they ALSO have evidence that the alien lied about their intent to a US immigration official (consular officer, CBP officer, etc.) then the additional negative factor of the material misrepresentation would be enough to deny to the AOS. Further, the material misrepresentation could result in the alien receiving a lifetime ban from the US.

Even though you had no intention to immigrate when you entered, there is always a possibility that USCIS could determine you did. Of course, they would be wrong, but the US government is frequently wrong and it doesn't see to phase them. They can't read your mind when you enter the US, so they have to look for evidence. Sometimes there will be evidence that appears to contradict what the alien's real intentions are, and this is when you run into problems.

Generally, the risk of them falsely concluding you had preconceived intent AND that you lied about your intent when you entered is small, but you have to think about your own situation in evaluating the risk. When you entered the US, how thoroughly were you inspected? Did they search your luggage? If so, did you bring anything that would not normally be required by a visiting foreigner, but WOULD be required to adjust status, such as documents or forms? Did they ask you any questions about your reasons for visiting the US? Did they specifically ask if you intended to immigrate, or ask you to sign any documents declaring your non-immigrant intent?

Remember that they need evidence of preconceived intent as well as evidence you lied about your intent in order to use this as a reason to deny your AOS. Only you can decide whether there is any risk they have this evidence. If you think they might, then it would be better to go back to Canada and pursue a CR1.

I agree with all of the above, including the bolded, but I want to tell my story just to show that it doesn't really seem to matter.

When I first joined VJ, I, the USC, was still living in China while my husband had moved back to his country for work, but I was moving home in a couple of months. I called USCIS and asked about AOS. I was told the entire process: enter the US on a B1/2, file I-130, get NOA, file I-765, get I-130 approval, file I-485. A long and expensive process, but we decided to go that way.

I joined VJ to get more information and asked about AOS. I was told in no uncertain terms that what we were contemplating was visa fraud. What I took away from that and the guide was that since my husband and I were already married for several years and I would be living in the US, not only was there the question of intent, we simply could not qualify. AOS was for people who came over and got married here. Not for people who were already married.

We planned for my husband to come for a long visit, file the I-130 once he got here (we were afraid he wouldn't be allowed in if we already had a pending I-130), and complete the process back in his country. We thought we'd be apart for about 6 months after he went back. Our timeline was held up due to work obligations and his passport expired and he had to renew his visa. I wrote a letter, which he gave to the CO with all his other proof of strong ties (he had lots of proof of strong ties, but I felt better writing the letter.) My letter stated clearly that we had NO intentions of filing for AOS. I didn't think he could qualify, as stated above.

After he finally got here, a friend INSISTED that there was no reason we could not AOS. I didn't think she knew what she was talking about, so we were going ahead with our IR/1 plans. However, we had to postpone filing the I-130 because my husband didn't know his parents' birthdays and he kept waiting to hear back from his family about the exact dates. By the time he discovered we could write "about 19XX" we were seriously considering filing for AOS, but I was worried about suspicion of intent and, of course, about the letter.

I called the CO and explained that if there would be a problem due to my letter, we would not file AOS. He seemed to think one had nothing to do with the other. He said we would not be denied AOS due to anything related to that. We also made an infopass to confirm that we could qualify for AOS and we would not have to prove that we didn't have intent. The officer waved that away once he got over his confusion as to why we would even ask it, and focused on proving strong ties.

We did not have preconceived intent and we did not lie to anyone, but there certainly was enough circumstantial evidence to suggest that we had, yet no one seemed remotely concerned about it but us. I was so concerned that we almost didn't consider AOS and only after lots of wringing of hands and stress we decided, for the sake of our daughter, to go for it. I'm so glad that we did. It was fast and easy.

[GabiandVi 34]

TSA routinely inspects luggage when people enter the US. They often toss a light blue card into your bag so that you know it's been inspected. My luggage is inspected almost every time I enter the US. In addition, CBP can choose to inspect your luggage when leaving the airport. I usually get directed around this checkpoint, but a good percentage of people have to pass through it.

Anything they find that indicates you intended to do anything other than visit and return, or that indicates you might intend to stay, would be evidence of preconceived intent. I gave a broad example, but to be more specific - birth or divorce certificates are needed to adjust status, but are NOT needed for a temporary visit to the US. The same is true of any US government forms that would be required in an AOS package. Other suspicious items would be receipts indicating you'd closed your bank accounts, or a letter of resignation indicating you'd quit your job, or any documents indicating you'd sold any property. Some of these things can be discovered during the background checks they perform, and wouldn't require anything in your luggage.

Think about what someone would discover if they knew everything that was in your luggage, and everything you had done prior to coming to the US. Would they conclude you were just going for a temporary visit, or perhaps moving permanently to the US?

An IR1 would take about a year, give or take.

Again, I agree with everything said above, but, again, this did not apply in our case. My husband brought everything with him, except the dates of his parents' birth, because I would be filing I-130, and I would have been his agent for everything else. He quit his job, sort of, because he was coming here for 6 months. One of the things that held up his visit was that he worked contracts for his gov., and he had to complete them before he left for an extended period because they involved being paid half up front. He had to stop taking contracts and finish up the contracts he had before he could leave.

Now, he comes from a country where it would be very cumbersome to check things like property sales, car sales, bank account closures, etc., and he didn't do any of that except close one bank account and open another that had online access.

His bags were inspected, in front of him, but, though I had sent another letter for him to show at the boarder, he was not held up at passport control, so he never showed it. Passport control did ask him what the purpose of his visit was and when he said to visit his family, they did ask how we met. Apparantly, they asked him that the last time he came to the US as well.

[cnfsdcanadian 1]

What kind of questions were asked at your interview?