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

[EM_Vandaveer 2,368]

1 hour ago, kid1412 said:

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.

Incorrect. 30/60/90 day: Department of State. USCIS: Department of Homeland Security.

[Boiler 43,429]

45 minutes ago, geowrian said:

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.

Agree one of those common misunderstandings that will not go away.

[Dashinka 23,236]

14 hours ago, Elopezv said:

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 😊

Take a deep breath, and start filling out the I485/I131/I765/I864 forms.  They are not that hard, and there are a lot of members that are willing to answer any questions you may have.  Congrats on the nuptials, and Good Luck!

[AtlToBlr 64]

12 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. 

 

It wont be OP's burden to prove that, actually. 

[EM_Vandaveer 2,368]

1 minute ago, AtlToBlr said:

It wont be OP's burden to prove that, actually. 

Exactly. It's USCIS' own policy NOT to deny an AOS application of an immediate relative of a USC based solely on intent.

[AtlToBlr 64]

OP, from personal experience: 

 

We were also worried about intent. My spouse was here on F1 visa and we were married for 2.5 year before we even applied for AOS. Within those 2 year she had 2 exits and entries back into the United States. The last one being a few months before we applied for AOS. 

 

It did not even come up. And I know the officer paid attention to it because she told my wife that she (the officer) did not need an updated I-94 if January 2017 was her last entry (we travelled together). 

Go ahead and file, you do not need an attorney.

[AtlToBlr 64]

1 minute ago, EM_Vandaveer said:

Exactly. It's USCIS' own policy NOT to deny an AOS application of an immediate relative of a USC based solely on intent.

Yes, people really need to stop fear mongering when it comes to this particular topic. It does not help anyone. 

[kid1412 62]

I rest my case. OP, make your own decision. 

 

 

Edited October 18, 2018 by kid1412

[aaron2020 11,651]

4 minutes ago, kid1412 said:

I rest my case. OP, make your own decision. 

 

 

Google Matter of Cavazos, Matter of Ibrahim, and Matter of Battista.   

 

Immigrant intent does not matter when an Immediate Relative beneficiary has already entered the US and is adjusting status.  

 

Rest your case on those matters since you are wrong. 

 

[kid1412 62]

Well, never thought that an advice to consult an immigration attorney would lead to this sort of chastisement.

 

Ok, OP, do NOT consult an immigration attorney. Just do whatever you want. What do I care...

Edited October 18, 2018 by kid1412

[geowrian 22,335]

Advice to speak to an attorney about a case in its totality to get an opinion is fine and normal...even if one is not needed, an initial consultation is not a bad idea.

Advice to speak to an attorney about a specific issue that is factual in nature with a clear answer is unnecessary.

The reference to the current administration was unnecessary as it has no bearing on the OP's case.

[Boiler 43,429]

I would never say do not consult a Lawyer but this is after all a DIY site and for the majority of cases a Lawyer is not needed.

 

Adjusting form a non immigrant visa is much much more common that say K1's or CR1's.

 

And if there were potential issues and seeing how common this is why are they not reported?

[Going through 5,668]

2 hours ago, kid1412 said:

Well, never thought that an advice to consult an immigration attorney would lead to this sort of chastisement..

It wasn't the part about you advising the OP to consult an immigration attorney that resulted in the responses you received.

 

It was the part about you stating/quoting inaccurate information as fact.

Edited October 18, 2018 by Going through
spelling

[kid1412 62]

 

Quote

 

And if there were potential issues and seeing how common this is why are they not reported?

 

Maybe because the people who had problems went and get lawyers who actually went to law school and  are licensed to practice laws?

 

Anyway let just end this discussion here. This no doubt must be a distraction to OP. So OP, you can get a lawyer or not get a lawyer, it doesn’t really matter. After it’s your life, not mine, nor anyone else’s posted in this forum.

 

I will not respond further on this thread.

Edited October 18, 2018 by kid1412

[AtlToBlr 64]

8 minutes ago, kid1412 said:

 

 

Maybe because the people who had problems went and get lawyers who actually went to law school and  are licensed to practice laws?

 

Anyway let just end this discussion here. This no doubt must be a distraction to OP. So OP, you can get a lawyer or not get a lawyer, it doesn’t really matter. After it’s your life, not mine, nor anyone else’s posted in this forum.

 

I will not respond further on this thread.

Yet again you don't even admit to the fact that you are spreading wrong information regarding the intent issue? 
Its ok, we are all wrong sometimes...just move on.