B2 already engaged to USC for over 2 years can apply for AOS?

[Elopezv 0]

(Writing from my husband’s account)

 

so...my husband and i met when we were 6 years old at our elementary school, he came to the US to live with his family at the age of 11 and we lost contact. He became a USC and everything.

He found me on Facebook when we were 20  years old and i was still living in Peru (year 2010) and we messaged eachother for about a year . He went to Peru to visit (he still has family in Peru) and we fell in love. He decided to stay in Peru (2012) and we started our relationship, he worked as a teacher.

in 2016 we got engaged but we didn’t set up a date to our wedding because we weren’t on a hurry or anything. We did decided to live together as soon as we got engaged though.

In January 2018 he wanted to move back to the US because he didn’t feel safe in Peru (couple of robberies happened to us) but i still had my job, my family and everything so I didn’t want to leave Peru. After a having a conversation about our future we decided to try to make it work with him living in the US and me in Perú, he came to the US in April 2018.

It wasn’t long after we found out how much we missed eachother, So i decided to visit him (since i already had a tourist visa and have Visited the US twice). I arrived 1 month and a half later, initially i was going to be in the US for a month but finally decided to stay together...he told me we could get married and i could filed for a adjustment of status. We got married on August 2018. We are currently filling out the forms for the adjustment of status.

My question is do any of you guys thinks we are committing fraud? or idk if anyone has had a similar case...any opinion will count thank you!

[geowrian 22,335]

Did you come to the US with intent to stay? If not, then you didn’t commit fraud.

 

It sounds like the decision to stay came after entry based on what you stated.

[Elopezv 0]

5 minutes ago, geowrian said:

Did you come to the US with intent to stay? If not, then you didn’t commit fraud.

 

It sounds like the decision to stay came after entry based on what you stated.

No, i came here to visit, mostly him but also somw family members that live in a different state. I arrived to my family’s state first then i went to visit him.

 

[geowrian 22,335]

1 minute ago, Elopezv said:

No, i came here to visit, mostly him but also somw family members that live in a different state. I arrived to my family’s state first then i went to visit him.

 

Then no issue. And not even questioned for your AOS.

[Elopezv 0]

Just now, geowrian said:

Then no issue. And not even questioned for your AOS.

I’ve been reading i think every post on this website...this whole process is very nerve racking 😣 im super stressed 😥 but hopefully everything works out for us 

thank you so much for your reply 😊

[TNJ17 1,329]

If you entered without intent to stay, you’re good. AOS away.

[kid1412 62]

I agree with others, as long as your intention when you entered was not to stay, you did not commit fraud or misrepresentation. However, under this climate of the Trump Administration, and for your peace of mind, I’d strongly suggest that you at the minimum consult an experienced immigration attorney. The potential problem here is that how do you prove that you did not have immigrant intent at the moment you used that B2 visa to enter the US. A good immigration 

can at the minimum give you some advice on how to present your case or if you retain service can help you get it done successfully. I am just afraid that you might get some wierd overzealous adjudicating officer that will deny the case or at worst, raise something like INA 212(a)(6)(C)(i). 

 

if you need advice on which attorney let me know. And God please do not in any circumstances go with Peter Messersmith from Chicago. That guy is God aweful. Good luck. 

 

[Going through 5,668]

5 hours ago, kid1412 said:

The potential problem here is that how do you prove that you did not have immigrant intent at the moment you used that B2 visa to enter the US

Intent is determined at the border.  OP does not have to prove anything beyond that point (in terms of intent/no intent) for filing the AOS, or at the AOS interview afterwards.  The adjudicating officers also know intent is determined at the border, so it cannot be brought into question at the interview.

Edited October 18, 2018 by Going through

[kid1412 62]

4 hours ago, Going through said:

Intent is determined at the border.  OP does not have to prove anything beyond that point (in terms of intent/no intent) for filing the AOS, or at the AOS interview afterwards.  The adjudicating officers also know intent is determined at the border, so it cannot be brought into question at the interview.

--> OP, so according to your post, your husband came to the US on April 2018 and you entered the US on B2 visa 1.5 months later, so say that puts you in June 2018. You two then got married in August 2018, correct? That is less than 90 days after you entered the US, correct? That puts you in risky territory, as the DOS recently updated the FAM to a now 90-days rule. You may have heard about the 30/60 days rule for AOS, that is no longer applied. It is now 90 days rule and the presumption is USCIS is following the same rule, although they have not come out and said it. Please read the below link carefully:

 

https://citizenpath.com/90-day-rule-adjusting-status/

 

As I mentioned, I don't doubt you intent. On the contrary, I believe you did not have immigrant intent when you entered. However, under this new rule, it's better be safe than sorry. All I'm saying is it would be wise to spend a couple hundred dollars to talk with a good experienced immigration attorney.  

[Diane and Chris 651]

10 hours ago, kid1412 said:

I agree with others, as long as your intention when you entered was not to stay, you did not commit fraud or misrepresentation. However, under this climate of the Trump Administration, and for your peace of mind, I’d strongly suggest that you at the minimum consult an experienced immigration attorney. The potential problem here is that how do you prove that you did not have immigrant intent at the moment you used that B2 visa to enter the US. A good immigration 

can at the minimum give you some advice on how to present your case or if you retain service can help you get it done successfully. I am just afraid that you might get some wierd overzealous adjudicating officer that will deny the case or at worst, raise something like INA 212(a)(6)(C)(i). 

 

if you need advice on which attorney let me know. And God please do not in any circumstances go with Peter Messersmith from Chicago. That guy is God aweful. Good luck. 

 

I really think she can get better advice here. No attorney needed, IMO.

[kid1412 62]

4 minutes ago, Diane and Chris said:

I really think she can get better advice here. No attorney needed, IMO.

Are you aware of the new 90 days rule? There will be an automatic presumption of misrepresentation, and it will be up to the alien to fight that presumption. That is not a battle one wants to fight. 

 

https://www.nafsa.org/Professional_Resources/Browse_by_Interest/International_Students_and_Scholars/DOS_Expands_Presumption_of_Misrepresentation_Rule_to_90_Days/

 

The "90-Day" Rule

9 FAM 302.9-4 includes detailed guidance for consular officers on interpreting and applying the "misrepresentation" ground of inadmissibility. A key element of DOS policy is the "90-day" rule, which establishes a presumption of willful misrepresentation "if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry." That is to say, if these actions occur within 90 days of entry, a consular officer "may presume that the applicant's representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry."

The current FAM entry is an expansion effective August 1,2017 of what previously had been the "30/60 day" rule. The prior 30/60 day rule worked in a similar way, on the same basis as the 90-day rule. See the next section for a comparison of the current rule to the prior rule.

9 FAM 302.9-4 gives the following examples of "conduct that violates or is otherwise inconsistent with an alien's nonimmigrant status," for purposes of applying the 90-day rule -

For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien's nonimmigrant status includes, but is not limited to:

(i) Engaging in unauthorized employment;

(ii) Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);

(iii) A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or

(iv) Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

Edited October 18, 2018 by kid1412

[Diane and Chris 651]

Yes, I am. 

[kid1412 62]

1 minute ago, Diane and Chris said:

Yes, I am. 

Alright, Then I said my piece. To me, this is too risky in this current environment, but that's my opinion. OP, you can make you own determination.

Also quoted from the same link above:

 

DOS Policy and DHS Determinations and Adjudications

The 90-day rule is a policy of the Department of State regarding eligibility for visa issuance. Although the Department of Homeland Security (DHS) and its branches (USCIS, ICE, CBP) are not bound by the policies of another agency, they can consider such policies when making their own independent determinations and adjudications.

[geowrian 22,335]

The so-called 90 day rule has no bearing on AOS. USCIS does not follow FAM (from the DOS) guidelines. Multiple BIA court cases have upheld that intent cannot be the reason for denial of an I-485 for the IR of a USC.

Edited October 18, 2018 by geowrian

[EM_Vandaveer 2,366]

1 hour ago, kid1412 said:

--> OP, so according to your post, your husband came to the US on April 2018 and you entered the US on B2 visa 1.5 months later, so say that puts you in June 2018. You two then got married in August 2018, correct? That is less than 90 days after you entered the US, correct? That puts you in risky territory, as the DOS recently updated the FAM to a now 90-days rule. You may have heard about the 30/60 days rule for AOS, that is no longer applied. It is now 90 days rule and the presumption is USCIS is following the same rule, although they have not come out and said it. Please read the below link carefully:

 

https://citizenpath.com/90-day-rule-adjusting-status/

 

As I mentioned, I don't doubt you intent. On the contrary, I believe you did not have immigrant intent when you entered. However, under this new rule, it's better be safe than sorry. All I'm saying is it would be wise to spend a couple hundred dollars to talk with a good experienced immigration attorney.  

BS. I married my husband 11 days after entering the US & it was never brought up at the interview. 30/60/90 day is a Department of State "thing". USCIS is under the Department of Homeland Security.