Applying for AOS from O-1 within 90 days of entry

[MarkRyder 0]

Hi all,

I've been in the US on and off the past 3 years on an O-1 visa which expires in Mar2018. I am a UK citizen.

I've recently married and my last entry to the US was June 29, 160 days ago. I am currently filing the paperwork for an AOS.

My wife and I had booked to travel to the UK for Christmas and return. We would be away 10 days, but now I'm hearing that if I leave the States and apply for my AOS upon my return, there may be issues with the application as it will be within 90 days of my last arrival to the States. This seems crazy to me that there would be an issue given that I've been in the States the majority of the 3 years of my visa. I can't wait 90 days upon my return to apply as then my O1 visa will have expired.

Does anyone have any ideas on what to do? Either apply now and don't go away and lose the cost of the flights etc. or apply upon my return.

Any help would be greatly appreciated. 

 

[Boiler 45,693]

O1 is dual intent.

 

No such thing as a 90 day rule btw.

[Hypnos 6,577]

O-1 visas are considered dual-intent.

 

9 FAM 402.13-10(B)

 

"as explained in 9 FAM 402.13-5(C) above, “dual intent” is permissible for O-1 visa holders."

 

9 FAM 402.13-5(C)

 

"DHS has determined that the approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O petition, a request to extend such a petition, or the alien’s application for admission, change of status, or extension of stay.  The alien may legitimately come to the United States for a temporary period as an O nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States."

 

So for you this isn't an issue.

Edited December 6, 2017 by Hypnos

[MarkRyder 0]

4 minutes ago, Hypnos said:

O-1 visas are considered dual-intent.

 

9 FAM 402.13-10(B)

 

"as explained in 9 FAM 402.13-5(C) above, “dual intent” is permissible for O-1 visa holders."

 

9 FAM 402.13-5(C)

 

"DHS has determined that the approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O petition, a request to extend such a petition, or the alien’s application for admission, change of status, or extension of stay.  The alien may legitimately come to the United States for a temporary period as an O nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States."

 

So for you this isn't an issue.

My lawyer is saying something different -

 

"there is now a policy in place that generally states that fraud and immigrant intent will be presumed if you enter on a non-immigrant Visa such as B-2/O-1 etc... and then file for adjustment within 90 days of last entry, so unless you’re ready to return and wait 90 days to file, I highly discourage traveling on your O-1 now"   "day by day, this new policy is being more and more strictly enforced from what I see and hear from other individuals and colleagues."

 

I'm confused as your comment, the comment above from Boiler and other comments on the internet are different to this.

[Hypnos 6,577]

They're your lawyer and we are not. Presumably you're paying for their advice; I know for sure you aren't paying for ours.

[MarkRyder 0]

2 minutes ago, Hypnos said:

They're your lawyer and we are not. Presumably you're paying for their advice; I know for sure you aren't paying for ours.

Well I desperately want you guys to be right and not him!

[Boiler 45,693]

2 minutes ago, Hypnos said:

They're your lawyer and we are not. Presumably you're paying for their advice; I know for sure you aren't paying for ours.

You do not get paid?

[Hypnos 6,577]

2 minutes ago, MarkRyder said:

Well I desperately want you guys to be right and not him!

And I think we are, but we're not your lawyers.

 

2 minutes ago, Boiler said:

You do not get paid?

I guess I have 5 years of timesheets to send in to @Captain Ewok

[Boiler 45,693]

5 minutes ago, Hypnos said:

And I think we are, but we're not your lawyers.

 

I guess I have 5 years of timesheets to send in to @Captain Ewok

Best to get them in before the year end, can be a bit of a rush in the new year.

[mindthegap 2,590]

O1 remains dual intent., and there is no 90 day rule. The new 'policy' mentioned is not current USCIS policy, and has no relevance to an O-1.

 

Unfortunately a law degree does not grant immunity from being incorrect, or stupid.

[MarkRyder 0]

23 minutes ago, mindthegap said:

O1 remains dual intent., and there is no 90 day rule. The new 'policy' mentioned is not current USCIS policy, and has no relevance to an O-1.

 

Unfortunately a law degree does not grant immunity from being incorrect, or stupid.

Is the dual intent for an o1 not assuming you'll go from o1 to GC through employment? I'm applying for AOS through marriage. Would that flag something up for them?

[MarkRyder 0]

1 hour ago, Boiler said:

O1 is dual intent.

 

No such thing as a 90 day rule btw.

Perhaps I didn't make myself clear I'm applying for AOS through marriage and not through employment. Does this make a difference?

[Boiler 45,693]

1 minute ago, MarkRyder said:

Perhaps I didn't make myself clear I'm applying for AOS through marriage and not through employment. Does this make a difference?

Nope

 

Perhaps ask your Lawyer for a few examples who have had issues, plenty of people out there adjusting. 

[geowrian 22,337]

4 hours ago, MarkRyder said:

My lawyer is saying something different -

 

"there is now a policy in place that generally states that fraud and immigrant intent will be presumed if you enter on a non-immigrant Visa such as B-2/O-1 etc... and then file for adjustment within 90 days of last entry, so unless you’re ready to return and wait 90 days to file, I highly discourage traveling on your O-1 now"   "day by day, this new policy is being more and more strictly enforced from what I see and hear from other individuals and colleagues."

 

I'm confused as your comment, the comment above from Boiler and other comments on the internet are different to this.

It sounds like your lawyer isn't aware that an O-1 visa is dual intent (or about there not being a 90 day rule for AOS, but that's a moot point anyway). And if he is aware, then I suggest asking him what he thinks "dual intent" means.