Can married couple file for I-130 and AOS while in the US?

[cultivator007 0]

Dear all,

I am an natural born American citizen with a Chinese residence permit married to my wife, a natural born Chinese citizen with a U.S. B1/B2 travel visa.

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Questions:

What is the best immigration path I need to take if the priority is for the both of us to travel to the states by end of June latest?

(I am ok if we can be in the states but the immigration process takes a bit longer)

If we have been married for almost 7 years now and given that she has a B1/B2 visa, would filing for I-130 and AOS while in the states be illegal or ok?

If we purchase open ended air tickets would that improve our feasibility?

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Background Context:

We have been married since Sept 2009 in China and I have been living in China with her since that time with a residence permit that allows me to live and work here legally.

My question is that my wife and I would like to move to the United States end of June (about a month away) and are confused whether or not we should file the I-130 form and AOS while we still live in China or from the States.

It would seem to be a lot easier to just travel to the states and do the immigration process there as that would satisfy my priority of being in the states by June.

But from what I've seen online it seems that some say in my situation I need to get an IR-1 via DCF, as we could run into some trouble/fraud trying to do the immigration process from the states.

I would like to add that since our marriage in 2009 we have regularly travelled to the states at the end of the year to celebrate the holidays with relatives, usually for 3-4 months starting from mid dec to mid march.

She has always been issued a U.S. B1/B2 visa since the start which has been renewed/extended for 4-5 years in a row.

In addition to the US, we have also travelled several times to Singapore, Japan, Korea, Hong Kong. All the visa stamp records are in my wife's passport.

Again, I must stress my main priority is being able to move to the states by end of June so I am not concerned if it takes longer for other filing processes to occur.

[Michael and Ganna 104]

1. Coming here on a tourist visa to adjust is fraud...

2.You may have some problems with domicile

I would start the IR-1 process DCF asap

[Lavender7 32]

Dear all,

I am an natural born American citizen with a Chinese residence permit married to my wife, a natural born Chinese citizen with a U.S. B1/B2 travel visa.

=======================================

Questions:

What is the best immigration path I need to take if the priority is for the both of us to travel to the states by end of June latest?

(I am ok if we can be in the states but the immigration process takes a bit longer)

If we have been married for almost 7 years now and given that she has a B1/B2 visa, would filing for I-130 and AOS while in the states be illegal or ok?

If we purchase open ended air tickets would that improve our feasibility?

=======================================

Background Context:

We have been married since Sept 2009 in China and I have been living in China with her since that time with a residence permit that allows me to live and work here legally.

My question is that my wife and I would like to move to the United States end of June (about a month away) and are confused whether or not we should file the I-130 form and AOS while we still live in China or from the States.

It would seem to be a lot easier to just travel to the states and do the immigration process there as that would satisfy my priority of being in the states by June.

But from what I've seen online it seems that some say in my situation I need to get an IR-1 via DCF, as we could run into some trouble/fraud trying to do the immigration process from the states.

I would like to add that since our marriage in 2009 we have regularly travelled to the states at the end of the year to celebrate the holidays with relatives, usually for 3-4 months starting from mid dec to mid march.

She has always been issued a U.S. B1/B2 visa since the start which has been renewed/extended for 4-5 years in a row.

In addition to the US, we have also travelled several times to Singapore, Japan, Korea, Hong Kong. All the visa stamp records are in my wife's passport.

Again, I must stress my main priority is being able to move to the states by end of June so I am not concerned if it takes longer for other filing processes to occur.

I'm a little surprised, your wife was able to travel to the States on a B1B2 after you two were married. I think it would be best to start the process from your wives home country, it would be much safer and you two would avoid further complications (them seeing it as a fraud and abusing her tourist visa). I am personally married to a US citizen as well, it's almost two years now, and we both live in my home country and planning on starting the process from here and then move the States. I am honestly even scared about travelling to the U.S. on my current B1B2 (which is still valid for another 7 years) just because we are already married. But I might be wrong, since you guys did that so many times... Anyhow, best of luck to you two!

[Boiler 45,651]

You can not immigrate on a tourist visa and you can not get an immigrant visa in a month, so what is your Plan B?

[cultivator007 0]

1. Coming here on a tourist visa to adjust is fraud...

2.You may have some problems with domicile

I would start the IR-1 process DCF asap

ok hmm, I have found conflicting information about this on some other searching online. Can anyone else clarify this further??

https://www.quora.com/If-I-enter-the-US-with-a-B1-B2-visa-is-there-a-way-for-me-to-change-it-to-a-permanent-residence-status

"Shah Peerally, Immigration Lawyer dealing in All aspects of Immigration Law

9.3k Views • Shah is a Most Viewed Writer in Immigration Law.

Yes of course, B1/B2 allows you to change. The article attached is to the point on this issue.Adjustment of Status for Immediate Relatives on B1/B2 Visitor Visas"

Below is a much more detailed thesis on this particular lawyer's view. It seems to make some kind of sense to me.

http://www.peerallylaw.com/en/content/view/562

I've quoted some of the relevant text here for us all to review.

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

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."

[Transborderwife 4,666]

You cannot enter with intent to adjust it is fraud

[cultivator007 0]

I'm a little surprised, your wife was able to travel to the States on a B1B2 after you two were married. I think it would be best to start the process from your wives home country, it would be much safer and you two would avoid further complications (them seeing it as a fraud and abusing her tourist visa). I am personally married to a US citizen as well, it's almost two years now, and we both live in my home country and planning on starting the process from here and then move the States. I am honestly even scared about travelling to the U.S. on my current B1B2 (which is still valid for another 7 years) just because we are already married. But I might be wrong, since you guys did that so many times... Anyhow, best of luck to you two!

Hi Lavender7,

Yes we have been able to travel to the States quite often. wow I didn't realize this was something that was difficult to do.

Thank you for your best wishes!

[cultivator007 0]

I'm a little surprised, your wife was able to travel to the States on a B1B2 after you two were married. I think it would be best to start the process from your wives home country, it would be much safer and you two would avoid further complications (them seeing it as a fraud and abusing her tourist visa). I am personally married to a US citizen as well, it's almost two years now, and we both live in my home country and planning on starting the process from here and then move the States. I am honestly even scared about travelling to the U.S. on my current B1B2 (which is still valid for another 7 years) just because we are already married. But I might be wrong, since you guys did that so many times... Anyhow, best of luck to you two!

Hi Lavender7,

I should add that in my opinion, the fact that my wife owns a business in China in which the both of us work and contribute projects to .

This is probably what made US side believe that she/we would have significant reason to come back to China.

And we never stay in the states longer than 3 months anyhow so I guess we have proved the truth of our situation over time.

[cultivator007 0]

You cannot enter with intent to adjust it is fraud

Thanks Transborderwife,

The more I read about this topic the more I think the situation is more fluid than we all might be thinking?

Take for example the following 2 posts that sound informed as well:

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http://www.visajourney.com/forums/topic/438660-adjustment-of-status-from-b1b2-to-immigrant/#entry6332192

Posted 29 June 2013 - 05:00 AM

Harpa Timsah, on 29 Jun 2013 - 02:33 AM, said:

It is illegal to enter the US on a non-immigrant visa with the intent to immigrate.

Correct. However if the foreigner is actually IN the USA, they are certainly free to marry and/or marry and immigrate by adjusting status. Intent at entry is not grounds to deny adjustment of status to the spouse of a US Citizen. Actually "lying" upon entry and getting caught doing so is a different matter entirely.

This kind of immigration is discussed in another forum. I'm sure an organizer will be along soon to move the topic there.

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http://www.visajourney.com/forums/topic/438660-adjustment-of-status-from-b1b2-to-immigrant/?p=6332265

Posted 29 June 2013 - 05:29 AM

Tradewind, on 29 Jun 2013 - 02:53 AM, said:

When we applied for a tourist visa, there was no intention at that time to immigrate as we were happy in Panama. My wife has been entering the USA on her B1/B2 tourist visa for 2 years off and on with no problems. We no longer feel secure living in Panama as I was shot in a robbery and we both suffer some degree of PTSD as she was with me at the time . No problem proving this. An adjustment of status fee is around $1000. Is it worth going that route over the conventional route? Is there advantage to do the "adjustment of status". I have already established a domicile in the USA. How do I renounce my residency in Panama?

I just want to file the simplest and cheapest and/or shortest time frame.

Thanks

You don't need to renounce your residency. You are free to just leave and establish your residence in the USA, where you are a citizen. Again, if she is IN THE USA, your wife is free to adjust status.

Intent is a potential issue at each entry regardless of your intentions when the visa was applied for. Nevertheless, immigrant intent upon entry is not grounds to deny AOS for the spouse of a US Citizen.

[Ryan H 3,812]

***Thread closed to additional discussion under the below quoted provision of the TOS; the OP has been provided with proper answers as it relates to their current situation and other items referenced are not relevant. Do not restart this thread or refer to it in other discussions.***

By way of example, and not as a limitation, you agree that when using the Service, you will not:

• Condone or instruct, either directly or indirectly, others on how to commit fraudulent or illegal immigration activities in any way, shape, manner or method.

Edited May 21, 2016 by Ryan H