Spouse overstaying on tourist visa

[Unlockable 7,306]

Good advice has already been given.

 

The only thing they have to worry about is her time here until she receives green card. As mentioned, she won’t be able to work or go back to her country until then, which could be a few months. May not even be able to get a driver’s license.

 

It is like virtual oblivion.

[Nitas_man 3,100]

2 hours ago, oncoming traffic said:

this is blatant misinformation regarding the adjustment of status of a spouse from within the country after overstaying

for the record, the potential change to which you are referring is for immigration petitions filed outside of the united states adjudicated by the department of justice

I am not referring to a "change" nor "for the record" am I referring to whatever you are talking about above. 

 

I am referring to the current rules applied for adjudicating AOS petitions filed when a non-immigrant enters the US on a non-immigrant visa and adjusts status too soon.

 

Some info, from immigration law sites - there is a lot of info on this out there:

 

https://www.avvo.com/legal-guides/ugc/30-60-day-aos-adjustment-of-status-rule-of-preconceived-intent

 

http://www.richardskruger.com/what-is-the-3060-day-rule-under-immigration/

 

This is the best one:

 

http://www.hummelaw.com/Blog/2014/January/The-30-60-Day-Rule.aspx

 

I believe that filing within 30 days of entry is extremely risky, 30-60 may invite a presumption, but filing after 60 days probably does not incur much risk.  The advice to "file as soon as possible" I believe was bad advice which was the basis for my comment on the thread.  Based on what the legal experts say it is better to wait before you adjust.

 

 

[Daisy.Chain 317]

That was quick.

[Nitas_man 3,100]

2 hours ago, Boiler said:

DoS rue not USCIS, OP is seeking to adjust in country.

DOS doesn't adjudicate AOS petitions dude. 

[Boiler 43,517]

1 minute ago, Nitas_man said:

DOS doesn't adjudicate AOS petitions dude. 

Exactly.

 

So why raise a DoS issue?

Edited November 27, 2017 by Boiler

[Nitas_man 3,100]

9 minutes ago, Boiler said:

Exactly.

 

So why raise a DoS issue?

Legal firms who specialize in immigration raise it because it appears to be something common that they run into.  One example explanation of the three provided, randomly picked summarizes this issue as follows:

 

GRANTING LAWFUL PERMANENT RESIDENCE IS DISCRETIONARY NOT MANDATORY

If a person enters the United States in certain nonimmigrant (temporary) visa categories with the obvious intention of applying for immigrant (permanent) status, their adjustment of status (AOS) application can be denied by the USCIS in the exercise of discretion. The nonimmigrant visa categories that can never intend to acquire permanent status are B-1/B-2 Visitors, F-1 Students, J-1 Exchange Visitors, Q Cultural Exchange Visitors, TN Visitors or Visa Waiver Visitors.

Applicants for AOS must not only prove to the USCIS that they have been "in status" at all times that they have been in the United States since 1987, but also that they have not acted in bad faith for their latest entry. The USCIS has adopted the "30/60 Rule" used by the Dept. of State's Foreign Affairs Manual (9 FAM 40.63 n4) when examining events that occur shortly after entry.

 

We know this because we considered this as an option for re-entry after being out awhile then discarded it in favor of SB1 or re-filing a petition from overseas.  The advice we were given and the research we did concluded that there is risk involved in visit------>AOS that is reduced the longer that you wait to file AOS.

Edited November 27, 2017 by Nitas_man

[Boiler 43,517]

1 minute ago, Nitas_man said:

I didn't.  Legal firms who specialize in immigration raise it because it appears to be something common that they run into.  One example explanation of the three provided, randomly picked summarizes this issue as follows:

 

GRANTING LAWFUL PERMANENT RESIDENCE IS DISCRETIONARY NOT MANDATORY

If a person enters the United States in certain nonimmigrant (temporary) visa categories with the obvious intention of applying for immigrant (permanent) status, their adjustment of status (AOS) application can be denied by the USCIS in the exercise of discretion. The nonimmigrant visa categories that can never intend to acquire permanent status are B-1/B-2 Visitors, F-1 Students, J-1 Exchange Visitors, Q Cultural Exchange Visitors, TN Visitors or Visa Waiver Visitors.

Applicants for AOS must not only prove to the USCIS that they have been "in status" at all times that they have been in the United States since 1987, but also that they have not acted in bad faith for their latest entry. The USCIS has adopted the "30/60 Rule" used by the Dept. of State's Foreign Affairs Manual (9 FAM 40.63 n4) when examining events that occur shortly after entry.

Yet again the OP is adjusting in country and you quote FAM. And that is wrong and misleading.

 

Lots of people adjust have not been in status, VJ is full of such cases.

[Nitas_man 3,100]

3 minutes ago, Boiler said:

Yet again the OP is adjusting in country and you quote FAM. And that is wrong and misleading.

 

Lots of people adjust have not been in status, VJ is full of such cases.

The USCIS has adopted the "30/60 Rule" used by the Dept. of State's Foreign Affairs Manual (9 FAM 40.63 n4) when examining events that occur shortly after entry.

 

I did not advise OP not to do it, I cautioned OP not to do it "as soon as possible".  VJ is definitely not full of cases of AOS within 30 days of entry and entry was also a month after overseas marriage.

 

Again, we researched this path ourselves (discarded it but researched it) and the advise we received is the advice being shared here.  It is ultimately up to the OP to decide what is best for them.

Edited November 27, 2017 by Nitas_man

[Boiler 43,517]

Hang around and learn.

[Nitas_man 3,100]

6 minutes ago, Boiler said:

Hang around and learn.

I remember when your case was being processed.  2005 or 2006?  That's a pretty long time.

Edited November 27, 2017 by Nitas_man

[Boiler 43,517]

You remember incorrectly.

[TearsOfBabylon 1,680]

Uhm, silly question probably, but:

Doesn't the spouse have to apply for CR-1 and return to her country?
They got married in Sept, she came on visitor visa in Oct, and now they would adjust?
Wouldn't everybody who got married out of the USA fly his/her spouse in to adjust from a tourist visa? 

[Boiler 43,517]

6 minutes ago, TearsOfBabylon said:

Uhm, silly question probably, but:

Doesn't the spouse have to apply for CR-1 and return to her country?
They got married in Sept, she came on visitor visa in Oct, and now they would adjust?
Wouldn't everybody who got married out of the USA fly his/her spouse in to adjust from a tourist visa? 

Depends, this is for people who enter to visit and then change their mind. Not people planning to immigrate.

[TearsOfBabylon 1,680]

Just now, Boiler said:

Depends, this is for people who enter to visit and then change their mind. Not people planning to immigrate.

Alright, thanks!

I thought the "mind change" only counts for "spontaneous" marriage with following AOS.

Learned something new!

[Boiler 43,517]

3 minutes ago, TearsOfBabylon said:

Alright, thanks!

I thought the "mind change" only counts for "spontaneous" marriage with following AOS.

Learned something new!

Pre planned marriage in the US as a tourist is not an issue, the decision to stay and adjust need to be made after entry.