Parents AOS while in the US

[need_help_now 0]

We applied for my parents AOS one month after they entered the US on a tourist visa. They questioned them at the airport at the time of entry due to their frequent trips, so we panicked and applied for their AOS. Luckily we had all the documents, so we used a lawyer and applied. The lawyer did not advice us against it and we were not familiar with the issues concerning the time of their entry into the US and the time of application. We have received interview notice for both of them. While looking for sample interview questions, we realized that this was an issue.

Date of entry: Feb 7th

Date of application: March 7th

What recourse do we have? Should we send them back to India and reapply? We are worried about jeopardizing their existing tourist visa.

We will really appreciate feedback and comments from people who have been in similar situations.

Thanks,

Anitha

[Casprd 167]

Don't know all the ins and outs of AOS, but given that they were questioned at the poe and that they are on a tourist visa then I would say yes, they need to return home and go through the proper visa application to immigrate here. If the IO thinks they came on a tourist visa with the intent to immigrate there are some serious questions of fraud, especially if they gave the CBP officer some other indication.

[Casprd 167]

Can't seem to edit my post, but here is some more information

Are you a US citizen? My understanding is they can try to AOS from an overstay if an immediate relative who is a US citizen sponsors them. If you are not yet a US citizen but your spouse is, then they don't count as an immediate relative. Not sure if the blanket forgivness of an overstay for a marriage based AOS applies in this case also, but given that they entered on a tourist visa with what seems the intention to stay, I would worry that you are risking a finding of fraud and the associated bans that go along with that. Sounds like it would be the best (and most correct) option to have them return home and then sponsor them on an immigration visa, assuming you US citizen or LPR.

[Brother Hesekiel 2,235]

They questioned them at the airport at the time of entry due to their frequent trips, so we panicked and applied for their AOS. Luckily we had all the documents, . . .

Don't make me explain this right now, but this is the potential time bomb.

Tell us everything you know about this, in as much detail as possible.

[JimVaPhuong 4,863]

Don't make me explain this right now, but this is the potential time bomb.

Tell us everything you know about this, in as much detail as possible.

No doubt. On top of this, they just happen to have all of the documents needed to adjust status.

1. Made a statement to an immigration officer that they do not intend to immigrate.

2. Evidence to the contrary in the form of documents required to adjust status, but not generally required to visit the US.

3. Proof of the contrary evidence when they filed to adjust status.

Item #1 becomes a material misrepresentation. Lifetime ban from the US.

[need_help_now 0]

Just a quick clarification-- They were only questioned at the POE since they had my son with them and the immigration officer was not sure why they took him with them (because I wanted my son to spend time with other relatives in India). Yes, I am a US citizen.

We wouldn't have thought of applying now if everything had gone well at POE. It really worried us that their future trips would be hard, so we wanted to apply for AOS.

[need_help_now 0]

Again, they WERE not questioned about their intent at POE and this is not their first trip. They have made several trips to the US earlier.

[need_help_now 0]

They even have the original return ticket they purchased to go back to India. Can that be considered intent to return? They had their birth certificates with them, they carry important documents like bank, house documents etc with them everywhere they travel (for emergency purposes).

They have been making frequent trips since my son was born here in the US. He is their ONLY grand child and we want them to be a big part of his life.

[LIFE'SJOURNEY 970]

For the life of me, I can't quite grasp this they have a home, bank account and other important documents in a pouch with them traveling to a foreign country, then a month later they say hey let's just migrate here on foreign soil and live. So, everything that they had been doing prior to taking a plane ride across the ocean is just hanging in limbo, until they decide to go back six to seven months later.

How do people whom had been living a normal life, make such a drastic decision without any pre-planning? Are they aware that a GC means they will have to live in the US, it's not a get out of trouble card for traveling? If I as a INB is questioning their motives, what do you think a USCIS skilled worker would be saying?

[need_help_now 0]

Please post helpful comments only. I don't really need random thoughts on my parents lifestyle--that'd be a different post for the future.

[LIFE'SJOURNEY 970]

Please post helpful comments only. I don't really need random thoughts on my parents lifestyle--that'd be a different post for the future.

If you couln't understand the thought process of the USCIS process, then how are you going to react at an interview. I can't and won't tell you how to cheat the process, but i will give you thoughts to think about. This is for you and your family to fiqure out how you'll will arrive at the finally solution.

Edited May 3, 2011 by LIFE'SJOURNEY

[need_help_now 0]

I don't need help from people that DO NOT understand that we are not trying to cheat but are requesting real help. If you cannot help, please do NOT waste my time with your random comments. Appreciate the interest, but don't care for the tone!

[LIFE'SJOURNEY 970]

Then I would say you need to request the aid of a lawyer. Your knee jerk reactions will not aid your parents in this journey.

[NigeriaorBust 4,087]

The system is to file am I130 and wait for an interview in your home country. Coming to the US with all the required documents in hand and just by chance deciding to file to stay is a hairs breath away from immigration fraud and a life time ban. You have choosen to roll the dice and see if you come out the winner or a huge loser in the immigration game. With so much at stake I wouldn't trust my future to a group of caring but untrained people on an internet site. You need a VERY well qualified legal professional.

[JimVaPhuong 4,863]

They even have the original return ticket they purchased to go back to India. Can that be considered intent to return? They had their birth certificates with them, they carry important documents like bank, house documents etc with them everywhere they travel (for emergency purposes).

They have been making frequent trips since my son was born here in the US. He is their ONLY grand child and we want them to be a big part of his life.

Here's the deal. Preconceived intent is not allowed. Adjustment of status for an immediate relative of a US citizen is an exception rather than simply an alternative to the normal immigrant visa process. However, there have been several cases, the most significant more than two decades ago, that established that while preconceived intent is a serious negative factor, it's not sufficient on it's own to justify denial of AOS. It doesn't matter if the preconceived intent actually existed in the minds of the immigrants - USCIS can't read people's minds - it matters what evidence they have that the intent existed. But again, if preconceived intent is all they've got against them then they won't use that as a basis to deny AOS.

So, when they find evidence of preconceived intent then they look for an indication that the immigrant may have misrepresented their intent to an immigration officer at some point - during the visa interview, or at the port of entry, usually. Any statement, even if it's a canned statement on a CBP processing form, that states they do not intend to immigrate can be determined to be an intentional misrepresentation if they find evidence to the contrary.

You need to microanalyze everything that happened at the port of entry. Did they bring the documents needed for AOS with them? Is it known or is it possible that CBP or TSA found those documents? Did they sign any form or make any statement that they did not intend to immigrate, and were only coming to visit? If they were jacked around at the port of entry then it's possible they were given a statement to sign, and that statement may have included an affirmation that they do not intend to immigrate.

Unless you're absolutely certain that they don't have the two pieces of the puzzle - evidence of preconceived intent, and a statement to the contrary - then you're taking a risk by attempting to adjust their status.