Interesting Article

[schatzi3277 6]

Adjustment of Status for Immediate Relatives on B1/B2 Visitor Visas

Adjustment of Status for Immediate Relatives on B1/B2 Visitor Visas

By: Hasan Abdullah, Esq.

I entered the country on a B1/B2 visitor visa, can I safely adjust status? This is a very common question, and a source of a lot of confusion, even amongst immigration practitioners, USCIS officers, and Consular Officers (AKA ConOffs). The answer, like most things in immigration, is "maybe."

As many people know, a B1/B2 visitor visa is not a dual intent visa. In other words, you should only have the intent to stay as a visitor and not to immigrate when you get the visa. If a ConOff interviewing you for the visa asks you whether you have intent to immigrate or if you have a US Citizen fiancé in the US, etc, and you say that you do have a fiancé and intend to get married and immigrate, you will not get the visa.

With the above considerations in mind, it is important to also understand the issues of preconceived intent (PCI) and fraud. The basic guideline is that PCI is not an inadmissibility bar, but fraudulent misrepresentation (INA 212(a)(6)©(i)) is. So even if you had, in your heart, preconceived intent, if you were never questioned about it, and you never stated anything untrue to a ConOff or Port of Entry Officer, nor made any misstatements in your DS (department of state) forms when they were filled, then you are legally good to adjust status.

Legal Authority Supporting Adjustment of Status

Again, preconceived intent in and of itself is not a problem for immediate relative adjustments. Specifically, the adverse factor of preconceived intent is overcome by the "substantial (or significant) equities" present in immediate relative adjustments. This legal authority stems form Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980). "Substantial equities" is further clarified in Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981).

As for the issue of fraudulent misrepresentation, the key concept is that silence, or failure to volunteer information, is not a misrepresentation. This concept is further confirmed by 9 FAM 40.63 and Matter of Tijam.

So to recap, PCI and fraudulent misrepresentation are two separate issues. The precedents of Cavazos and Ibrahim make it clear that PCI by itself is not an issue for immediate relative adjustment of status cases. Silence before a ConOff or Port of Entry Officer is not a misrepresentation.

What About the 30/60 Day Rule?

The famous "30/60 day rule" can be found in 9 FAM 40.63 N4.7. In a nutshell, the rule states that in the event that a B-2 visitor informs an immigration officer that his or her visit is for tourism, and the visitor violates this status by doing something contrary to B-2 conditions (eg. get married and take up permanent residence), there will be a presumption of fraudulent misrepresentation if the violation happened within 30 days of admission, or there will be rebuttable presumption that if the violation happened within 60 days of admission.

It is important to note, however, that the "30/60 day rule" is not a substantive rule. It is merely a procedural rule as to when and how a consular determination of inadmissibility under 212(a)(6)© is to be reviewed by the Advisory Opinion Office in Washington DC (which no longer happens). Previously (several years ago) all 212(a)(6)© determinations had to be sent to the Administrative Office.

So today, the 30/60 day rule is meaningless in the adjustment of status context. However, USCIS still misapplies the 30/60 day rule, while immigration attorneys over rely on it. CIS uses it inappropriately as a sword on a bright line test, while attorneys misuse it as shield thinking they are always safe after 60 days.

What about Adjustment of Status for Immediate Relatives on the Visa Waiver Program VWP?

If you entered on the VWP, you may be eligible to adjust just the same as a B1/B2 visitor, subject to the same rules and limitations discussed previously, but there is a caveat.

VWP entrants agree to a "no-contest clause," to wit, to waive any rights to review or appeal an immigration officer's admissibility determination and to waive the right to contest any action for removal except on the basis of an asylum application. INA §217(b). What this means is that you can be subject to removal if you violate terms of your VWP admission, and do not have the opportunity to contest the removal. The affect of this no-contest clause depends on whether you are in the 9th Circuit.

If you are in the 9th circuit, the case precedent of Freeman v. Gonzales, 444 F.3d 1031 (9th Cir.2006), provides immediate relative beneficiary VWP entrants protection from removal for overstay after filing for adjustment of status.

However, Momeni v. Chertoff, 521 F.3d 1095, (9th Cir.2008), states that the right to protection from removal for VWP entrants is limited to situations where the applicant files for adjustment of status while their stay is authorized. Momeni states:

Note that the rationale in Freeman was not adopted in other Circuits, however. Thus, VWP entrants may only apply for adjustment of status if they do so while their stay is authorized.

So to summarize, in the 9th Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, it is safe for VWP entrants in authorized stay to apply for adjustment of status. If you are not in the 9th Circuit, and you attempt to adjust status as a VWP entrant, you may potentially be removed under a 217 order from the District Director without hearing before an Immigration Judge (unless if you have an asylum claim).

What about Adjustment of Status for Immediate Relatives on C-1 Transit Visas?

C-1 visas are issued to both crewmen and aliens in transit. If you were employed in a vessel or aircraft and designated to join such vessel or aircraft (you may have a C/D notation on your visa passport), you are not eligible to adjust, and have to have your sponsor file a green card petition for you under consular processing. You would then apply for the green card visa in your home country.

On the other hand, if you were a C-1 not working of or intending to join a vessel or aircraft, but were only in transit through the United States, you may be eligible to adjust just the same as a B1/B2 visitor, subject to the same rules and limitations discussed previously.

Conclusion

Some immigration officers may not be trained to recognize that preconceived intent by itself is not a ground of inadmissibility, and that's were a good immigration attorney can help. It you end up in front of an immigration officer that does not understand the distinctions described in this article, an attorney can be armed with the necessary case law and regulation citations to educate them to make the right decision and approve the adjustment of status.

[strawpuppy 0]

Phew!

I am so thankful to you for posting this.

I am a US born citizen, with three British children. My other two children were granted citizenship instantly, but my third son who came over on a VWP expecting to get his citizenship was denied. I did not pass the residency years and he is over 21.

We live in Idaho and his VWP is still valid.

I think if I read your post correctly we should apply for a change of Status Visa for him asap. We can then fill in the I-130. Or do we do both?

I seem to find conflicting information everywhere!

Any advice welcome.

Thanks for your post.

[JimVaPhuong 4,863]

Phew!

I am so thankful to you for posting this.

I am a US born citizen, with three British children. My other two children were granted citizenship instantly, but my third son who came over on a VWP expecting to get his citizenship was denied. I did not pass the residency years and he is over 21.

We live in Idaho and his VWP is still valid.

I think if I read your post correctly we should apply for a change of Status Visa for him asap. We can then fill in the I-130. Or do we do both?

I seem to find conflicting information everywhere!

Any advice welcome.

Thanks for your post.

First, the quoted article is outdated. There have now been seven US District Courts of Appeal, including the 9th circuit in California, that have essentially come to the same conclusions as the Momeni case.

What, exactly, is the relationship between you and your son? Are you his biological father? Are you his step-father? When you say you didn't pass the residency test, does this mean you don't have five years of continuous residency in the US, at least three of which were after you were 14 years old?

[Myopia 93]

Phew!

I am so thankful to you for posting this.

I am a US born citizen, with three British children. My other two children were granted citizenship instantly, but my third son who came over on a VWP expecting to get his citizenship was denied. I did not pass the residency years and he is over 21.

We live in Idaho and his VWP is still valid.

I think if I read your post correctly we should apply for a change of Status Visa for him asap. We can then fill in the I-130. Or do we do both?

I seem to find conflicting information everywhere!

Any advice welcome.

Thanks for your post.

How did the other two acquire instant citizenship if you didnt pass the residency test? I am assuming you didnt live in the US for five years after the age of 14.

[strawpuppy 0]

First, the quoted article is outdated. There have now been seven US District Courts of Appeal, including the 9th circuit in California, that have essentially come to the same conclusions as the Momeni case.

What, exactly, is the relationship between you and your son? Are you his biological father? Are you his step-father? When you say you didn't pass the residency test, does this mean you don't have five years of continuous residency in the US, at least three of which were after you were 14 years old?

Yes I am his biological mother, born in the USA. My husband (the childrens father was British). My father was military. I can prove 5 years before age 14, but not 5 years prior to the childrens birth. My other two children instantly got citizenship, so he came over on the 9th January 2011 and thought he would get his citizenship, with no luck!

really we do not know what to do for the best. It looks like we will just apply for the I-130 and let him overstay. There really is no alternative as he gave up everything when he left the UK.

What else is there?

Thanking for replying,

[doctorbeat 6]

Oops, didn't read the above post properly, please ignore...

Edited February 22, 2011 by doctorbeat

[JimVaPhuong 4,863]

Yes I am his biological mother, born in the USA. My husband (the childrens father was British). My father was military. I can prove 5 years before age 14, but not 5 years prior to the childrens birth. My other two children instantly got citizenship, so he came over on the 9th January 2011 and thought he would get his citizenship, with no luck!

really we do not know what to do for the best. It looks like we will just apply for the I-130 and let him overstay. There really is no alternative as he gave up everything when he left the UK.

What else is there?

Thanking for replying,

This is confusing. The way you've worded your response makes it sound like your children were born before you were 14 years old.

I'm going to try to read between the lines, and presume that you have at least five years of presence in the United States, but you didn't have the necessary two years of presence in the US after you were 14 years old, correct? In that event, you would not have been eligible to file a consular report of birth abroad and obtain US citizenship for your children while they were still outside the US. Your children under the age of 18 automatically acquired US citizenship under INA section 320 when they arrived in the US - there is no minimum period of physical presence for you in this case. Your older child is no longer eligible to derive citizenship through you because he's over 18, and you don't meet the physical presence requirement so he can't apply for a certificate of citizenship.

He isn't eligible for an immediate relative visa number because he's over 21 years old. You'll be filing for FB1 family based visa number using the I-130. You can't simultaneously apply for adjustment of status to get a green card. You'll have to wait until his priority date becomes current. The priority date is the date the I-130 is accepted by USCIS. They are currently issuing visa numbers for petitions with a priority date of January 1, 2005, so you're looking at a wait of about 6 years. Unfortunately, your son cannot simply hang out in the US and wait for his priority date to become current. Since he's not going to be adjusting status based on an immediate relative (IR) visa category, he must be lawfully present in the US when his adjustment of status application is submitted. Since he arrived using the VWP his authorized stay will expire 90 days after his arrival.

Please, consult with an immigration attorney before making any decisions. From what I can tell, I think your son has to return to the UK and wait for his priority date to become current.

[Myopia 93]

Did all three children enter on the Visa Waiver Program or was it just the oldest?

I dont understand how the first two children were able to get automatic citizenship if they entered on the VWP, I thought they had to enter on a immigrant visa?

[Krikit 1,163]

Did all three children enter on the Visa Waiver Program or was it just the oldest?

I dont understand how the first two children were able to get automatic citizenship if they entered on the VWP, I thought they had to enter on a immigrant visa?

This post might make things a little clearer:

http://www.visajourney.com/forums/topic/296738-what-to-do-time-is-running-out-please-help/page__view__findpost__p__4494090

[JimVaPhuong 4,863]

Did all three children enter on the Visa Waiver Program or was it just the oldest?

I dont understand how the first two children were able to get automatic citizenship if they entered on the VWP, I thought they had to enter on a immigrant visa?

Biological children of a US citizen who are under 18 will receive US citizenship automatically when they enter the United States. There are no minimum residency requirements for the US citizen parent. They can receive US citizenship before entering the United States, if they are eligible, by their USC parent filing a CRBA at a US consulate. The CRBA has minimum residency requirements for the US citizen.

This is the OP's quandary. She couldn't get US citizenship for her children before bringing them to the US because she didn't meet the minimum residency requirements. She couldn't get automatic US citizenship for her older child when he entered the US because he was over 18.

Edited February 22, 2011 by JimVaPhuong

[Myopia 93]

Biological children of a US citizen who are under 18 will receive US citizenship automatically when they enter the United States. There are no minimum residency requirements for the US citizen parent. They can receive US citizenship before entering the United States, if they are eligible, by their USC parent filing a CRBA at a US consulate. The CRBA has minimum residency requirements for the US citizen.

This is the OP's quandary. She couldn't get US citizenship for her children before bringing them to the US because she didn't meet the minimum residency requirements. She couldn't get automatic US citizenship for her older child when he entered the US because he was over 18.

Ahh I get it. They made a mistake.