Filing for I 130 and I 485 with I 94 expired

[ValerieA 350]

Well..Guess you would be wrong, then.

Yup, you are right. It doesn't matter what country you are from, AOS rules apply the same way to everyone.

[aosapplicant 3]

Yup, you are right. It doesn't matter what country you are from, AOS rules apply the same way to everyone.

As recently as in 2010 USCIS was routinely denying all AOS applications for VWP applicants who filed

for AOS 90 or more days after entry (past expiration). USCIS later reversed and resumed approving

those applications. They are also visitors who get admitted automatically at the border (like Canadians)

but under slightly different terms.

It tells us two things:

#1. AOS rules do not apply the same way to everyone. Country of origin does play role (we are not talking

about profiling here, but the natural assumptions made based on circumstances that are born our of

statutory regulations).

#2. What is the rule today may not be rule tomorrow and what was a rule yesterday may not be the same today.

This is notwithstanding the laws , that change on their own accord, and notwithstanding even regulations.

There are three different factors that play a role to a varying degree:

a) INA

b) Federal Regulations (interpretation of law by executive branch and instructions how to apply it)

c) internal memos and trends that constantly change based on changing environment , case laws, internal decisions

and millions of other things.

There is still substantial risk of being denied, removed and permanently barred for entering US on tourist visa

and deciding to marry the next day , even though there may be cases where people had their AOS approved

and/or were able to overcome presumption of pre-conceived intent and/or were adjusted on discretion of adjudicating

officer (they have such discretion statutorily delegated to them) notwithstanding the presumption of pre-conceived

intention and in absence of any other adverse factors.

Whoever says that Immigration laws are not complex ?

Edited March 5, 2012 by aosapplicant

[Harpa Timsah 13,258]

As recently as in 2010 USCIS was routinely denying all AOS applications for VWP applicants who filed

for AOS 90 or more days after entry (past expiration). USCIS later reversed and resumed approving

those applications. They are also visitors who get admitted automatically at the border (like Canadians)

but under slightly different terms.

Not true. San Diego was denying outright and court of appeals district 3 was putting on indefinite hold. Other offices were operating normally. Canadians enter under the terms of a B2 visa without the need to apply for one.

Lots of good bits here, but the whole story is being lost. I don't know why this thread continues, honestly.

[aosapplicant 3]

Not true. San Diego was denying outright and court of appeals district 3 was putting on indefinite hold. Other offices were operating normally. Canadians enter under the terms of a B2 visa without the need to apply for one.

Lots of good bits here, but the whole story is being lost. I don't know why this thread continues, honestly.

You are right that AOS from VWP wasn't being denied uniformly , so instead of "USCIS was denying all AOS applications" I should have wrote "...some USCIS offices were denying all AOS applications" from VWP applicants who applied for AOS past 90 days. That practice, as I mentioned, has ended recently.

The point is, regulations are not static, nor are application of the same.... On top of it you have variables like different offices interpreting the same regulation differently, plus ever changing regulations from Federal Register, coupled with internal memos and changes in case processing...

All this adds up to be a warning to any applicant out there that just because a poster from Canada successfully applied and obtained AOS based on I-130 that got approved within a week of her arrival to US, doesn't mean others will not be risking denial and permanent bar if, unlike this particular user, it is assumed that they had pre-conceived intent and what not. Who here can guarantee to the Venezuelan OP that their petition won't be denied on presumption of fraud, provided

she had met her future husband, left ,returned , married and now applies for AOS?

This thread continues to reduce false assumptions about simplicity of INA and how the application of law can vary from case to case depending on great number of variables that will inevitable remain invisible to a lay man that most of us are when it comes to filing petitions.

Edited March 5, 2012 by aosapplicant

[Dakine10 5,452]

But it appears that you have met, married, left and then re-entered on non-immigrant visa ALREADY AS A FIANCE/SPOUSE OF USC?

If you get denied you will be referred to immigration court. The ICE will argue that you had clear intention to

defraud and did defraud border officer by concealing a fact of having a USC fiance/spouse (having fiance/spouse in US = intent to immigrate under official regs, period.

Just to clarify, there have already been several previous rulings that "not offering information that is not asked for is not considered misrepresentation". Stating something false is. Not completely answering or witholding information when a question asked also is. However, you don't have to bring up being the spouse of a USC if they don't ask.

Also according to the letter of the law, being married to a USC can not be used in and of itself as a denial for a B2. This is actually stated in the FAM. I'm sure they do deny for this reason but they shouldn't.

If they attempted to pursue either of those avenues in front of a judge, they would be hammered by any half decent immigration attorney.

Edited March 5, 2012 by Dakine10

[aosapplicant 3]

Just to clarify, there have already been several previous rulings that "not offering information that is not asked for is not considered misrepresentation". Stating something false is. Not completely answering or witholding information when a question asked also is. However, you don't have to bring up being the spouse of a USC if they don't ask.

Also according to the letter of the law, being married to a USC can not be used in and of itself as a denial for a B2. This is actually stated in the FAM. I'm sure they do deny for this reason but they shouldn't.

If they attempted to pursue either of those avenues in front of a judge, they would be hammered by any half decent immigration attorney.

I think you fail to note that the purpose of visitor visa is to temporarily visit and return. You must be able to qualify for it to begin with.

Now, I don't know what the process of automatic admission as visitor(for Canadians) is , but for everyone else it is rigorous enough to

exclude the possibility of not being asked about ones' spouse (remember, ValerieA had I-130 in the latest stages prior to arrival to US).

As to FAM, ofc it plainly states that family members can be issued B visas, but it doesn't say they can then stay and apply for AOS.

To the contrary, it specifically expects the visitor to return so as to prove that they acted in the good faith.

I think you confuse the FAM guide that authorize issuance of visitor visas to USC family members with the concept of presumption of pre-conceived

intent to immigrate when one enters on said visa and right away decides to adjust status.

None of what I post should be considered a legal advise, as I am not an attorney and have limited knowledge of statutes and regulations. This is just idle

discussion where I express my opinion and, as side benefit, everyone can discover for themselves that Immigration Laws are not a simple matter

and should never be taken lightly.

[Kathryn41 3,205]

One post that crossed the fine line between expressing an opinion and violating TOS by name calling has been removed. Someone disagreeing with you is not a violation of TOS. Attacking them personally because they have posted that they disagree with you is.

One additional post has been removed as it can be considered baiting.

Edited March 6, 2012 by Kathryn41

[Dakine10 5,452]

I think you fail to note that the purpose of visitor visa is to temporarily visit and return. You must be able to qualify for it to begin with.

Now, I don't know what the process of automatic admission as visitor(for Canadians) is , but for everyone else it is rigorous enough to

exclude the possibility of not being asked about ones' spouse (remember, ValerieA had I-130 in the latest stages prior to arrival to US).

As to FAM, ofc it plainly states that family members can be issued B visas, but it doesn't say they can then stay and apply for AOS.

To the contrary, it specifically expects the visitor to return so as to prove that they acted in the good faith.

I think you confuse the FAM guide that authorize issuance of visitor visas to USC family members with the concept of presumption of pre-conceived

intent to immigrate when one enters on said visa and right away decides to adjust status.

None of what I post should be considered a legal advise, as I am not an attorney and have limited knowledge of statutes and regulations. This is just idle

discussion where I express my opinion and, as side benefit, everyone can discover for themselves that Immigration Laws are not a simple matter

and should never be taken lightly.

I'm not confusing anything. I know the purpose of the B2. I'm clarifying where you said "having fiance/spouse in US = intent to immigrate under official regs". There is nothing "official" that says that. If that was true, they wouldn't be able to issue a B2 to a spouse of a USC.

[aosapplicant 3]

I'm not confusing anything. I know the purpose of the B2. I'm clarifying where you said "having fiance/spouse in US = intent to immigrate under official regs". There is nothing "official" that says that. If that was true, they wouldn't be able to issue a B2 to a spouse of a USC.

Every non-immigrant is considered an intending immigrant unless able to overcome such presumption.

Yes, FAM specifically states that it is permissible to issue visas to individuals who wish to visit USC relatives (provided

they convince of their intention to return after the trip).

In any event, at question here is not my less than perfect expression of how non-immigrants who have USC spouses are presumed

to be intending immigrants.

At questions here (and most relevant to OP) is what appears to be pre-conceived intention to immigrate.

If OP returns (provided there are no other negative factors) then she will prove to have acted in good faith.

However, having left US after meeting a person with whom, upon her second arrival to US, she decided to marry and now

wishes to file AOS with... well, in my opinion, this is way too close, dangerously close to definition of pre-conceived intent

to circumvent the existing visa regulations and take a short cut.

I keep repeating that this is my opinion, I am not an attorney, have limited knowledge of statues & regulations and in no way what

I write should be taken as a legal advise. I don't know how to say it more conspicuously.

At the same time I think this discourse serves a beneficial purpose of letting everyone know, on one simple example , how really complex

immigration laws are and how mindful one must be of possible repercussions and failure to adhere to existing regulations.

Edited March 6, 2012 by aosapplicant

[pushbrk 12,087]

60 day rule, regardless of what you or I think of it, is a rule (actual ruling by a Judge sitting on bench and in charge of interpreting a law).

It is not written in stone, but serves as a basic frame upon which many assumptions are construed and decisions made.

In any event, the "60 day rule" is irrelevant here since she had known her fiance before she stepped her foot on US.

I do not want to sound rude, but may be you should indeed read up more.

At the risk (I'm willing to take it.) of sounding "rude" (which I may be) and like I need to "read up more", which I don't, you are simply wrong.

My read on this situation is that there was no misrepresentation at the POE. As such, this mother and son, who are spouse and immediate relative of a US Citizen are well within their rights to adjust status from within the USA, now, next week or six months or 8 years after their I-94s expire. I would advise them to do so ASAP but not to worry about going past the I-94 date.

One needs only to read the instructions for the I-485 to understand this clearly. Absent an actual documented misrepresentation at the POE (All indications are that non was made or even close.) intent is not an issue for the spouse of a US Citizen.

So, to the OP. File when ready and relax. All is well. You'll be one/two of hundreds, on any given week, of immediate relatives of US Citizens who filed to adjust status after their authorized stay expired and one/two of hundreds of immediate relatives of US Citizens who filed to adjust status after their authorized stay expired who will be granted LPR status the same week you can expect yours to be granted.

I can't explain why others will tell you different. I can only explain why they are wrong.

[venezoameri 1]

At the risk (I'm willing to take it.) of sounding "rude" (which I may be) and like I need to "read up more", which I don't, you are simply wrong.

My read on this situation is that there was no misrepresentation at the POE. As such, this mother and son, who are spouse and immediate relative of a US Citizen are well within their rights to adjust status from within the USA, now, next week or six months or 8 years after their I-94s expire. I would advise them to do so ASAP but not to worry about going past the I-94 date.

One needs only to read the instructions for the I-485 to understand this clearly. Absent an actual documented misrepresentation at the POE (All indications are that non was made or even close.) intent is not an issue for the spouse of a US Citizen.

So, to the OP. File when ready and relax. All is well. You'll be one/two of hundreds, on any given week, of immediate relatives of US Citizens who filed to adjust status after their authorized stay expired and one/two of hundreds of immediate relatives of US Citizens who filed to adjust status after their authorized stay expired who will be granted LPR status the same week you can expect yours to be granted.

I can't explain why others will tell you different. I can only explain why they are wrong.

I'm honestly thankful for your advise as well as all the people that has replied to my post as I was really worry about it. I've talked not to one or two but three experienced immigration lawyers and they've all given me theadvise (same advise that many of you have kindly given me here)of filing for my AOS from here despite the fact I entered on my b2 visa and was already married to a USC.

I'm much more relaxed now and so is my husband. We are both feeling confident now and we'll file for AOS pretty soon.

Thanks to all of you who've kindly given me advise and peace of mind.

[pushbrk 12,087]

I'm honestly thankful for your advise as well as all the people that has replied to my post as I was really worry about it. I've talked not to one or two but three experienced immigration lawyers and they've all given me theadvise (same advise that many of you have kindly given me here)of filing for my AOS from here despite the fact I entered on my b2 visa and was already married to a USC.

I'm much more relaxed now and so is my husband. We are both feeling confident now and we'll file for AOS pretty soon.

Thanks to all of you who've kindly given me advise and peace of mind.

Sounds like you have it sorted out well. Good. Welcome to the USA.

[Dakine10 5,452]

I can't explain why others will tell you different.

An explanation, I think, is that much of the incorrect information raised here is simply out of date. The 30/60 day rule hasn't been relevant for almost 20 years. Likewise, Matter of Cavasos clarified the issue of preconceived intent years ago.

I would agree, as you said, these types of immediate relative AOS cases are mostly routine nowadays.

[pushbrk 12,087]

None of what I post should be considered a legal advise, as I am not an attorney and have limited knowledge of statutes and regulations. This is just idle

discussion where I express my opinion and, as side benefit, everyone can discover for themselves that Immigration Laws are not a simple matter

and should never be taken lightly.

This absolutely is NOT idle discussion. If that's what you consider your comments to be, then ignoring them would be a great idea for any reader. The OP came here for serious discourse, not idle discussion.

When you have limited knowledge on a subject, you might find it wise to read what those who know better and more, say and learn, instead of muddying waters that are quite clear to, well me, for one and several others with whom you've chosen to take issue.

[aosapplicant 3]

At the risk (I'm willing to take it.) of sounding "rude" (which I may be) and like I need to "read up more", which I don't, you are simply wrong.

My read on this situation is that there was no misrepresentation at the POE. As such, this mother and son, who are spouse and immediate relative of a US Citizen are well within their rights to adjust status from within the USA, now, next week or six months or 8 years after their I-94s expire. I would advise them to do so ASAP but not to worry about going past the I-94 date.

One needs only to read the instructions for the I-485 to understand this clearly. Absent an actual documented misrepresentation at the POE (All indications are that non was made or even close.) intent is not an issue for the spouse of a US Citizen.

So, to the OP. File when ready and relax. All is well. You'll be one/two of hundreds, on any given week, of immediate relatives of US Citizens who filed to adjust status after their authorized stay expired and one/two of hundreds of immediate relatives of US Citizens who filed to adjust status after their authorized stay expired who will be granted LPR status the same week you can expect yours to be granted.

I can't explain why others will tell you different. I can only explain why they are wrong.

1. Thinking or stating that I or any other poster is wrong is not rude at all. It is your right to dissent, disagree and express your opinion.

Thank our luck, we live in America, not some despotic tyrant-land.

As long as you don't resort to name calling or outright , personal insults I have no problem with you sharing your opinion, however disagreeable it may be with what I wrote.

In fact, if you are right I must thank you for enlightening me.

2. Your read on this situation doesn't matter. USCIS adjudication officers' does. never forget thAt.

3. I-485 doesn't say anything about dual intent or presumption of fraud where one files AOS immediately after

arrival to US (or after getting tourist visa with existing relationship to USC fiance/spouse and filing AOS on the basis

of that relationship after being admitted).

This absolutely is NOT idle discussion. If that's what you consider your comments to be, then ignoring them would be a great idea for any reader. The OP came here for serious discourse, not idle discussion.

I respectfully suggest you to read the terms of service where it unambiguously says that nothing posted on this board is a legal advice nor creates attorney-client relationship , which supersedes the extra disclaimers I posted on top of it (for the convenience of the readers who may not have read the Terms of Service).

So, here I copy paste TERMS OF SERVICE from http://www.visajourney.com/content/terms (perhaps readers should start with ignoring your posts):

NO LEGAL ADVICE OR ATTORNEY-CLIENT RELATIONSHIP

Information contained on or made available through VisaJourney.com Websites and Services (including but not limited to the discussion forums) is not intended to and does not constitute legal advice, recommendations, mediation or counseling under any circumstance and no attorney-client relationship is formed. Do not act on or rely on any information from VisaJourney.com Websites and Services without consulting with a licensed attorney as this site is not a substitute for obtaining appropriate legal advice from a competent, independent legal counsel in the relevant jurisdiction. Moreover, due to the rapidly changing nature of the law and the reliance on information provided by outside sources, we make no warranty or guarantee concerning the accuracy or reliability of the Content on VisaJourney.com Websites and Services or at other sites to which we link. Nothing submitted to this Web Site is treated as is privileged or confidential with the exception of items listed in Visajourney.com's Privacy Policy. All communications and Content Posted via the Service (including but not limited to the discussion forums) are NOT treated as privileged or confidential.

Finally, if you want to chime in on anything, there is no need to send me PM, you can very well post your concerns here, in public and openly, as I have no

private matter to discuss with any of the members of this forum ( I write this because I noticed a PM from you on my box).

Best regards,

AOS Applicant

Edited March 6, 2012 by aosapplicant