Please help clarify what to do about AOS off a visa waiver :-)

[SalishSea 16,747]

6 hours ago, Mary&Rafa said:

 

Well then I was grossly misinformed. Had I know this wouldn't have been an issue I would be in the States and married already. 

It comes down to intent at the border.  Most people entering the US to visit are not in a position to abruptly leave behind kids, property, jobs and other responsibilities. And many can't afford that lengthy period of not working; in the OP's case, with the 90 days on the VWP and the period of time after filing, it could be a good 8-10 months without working.

[Cryssiekins 976]

6 hours ago, Mary&Rafa said:

 

Well then I was grossly misinformed. Had I know this wouldn't have been an issue I would be in the States and married already. 

Well... no.  Had you known prior to entering the US and planned to stay and adjust, you would be committing visa fraud.  Although, intent is determined at port of entry, so it is technically possible.  And this, the reason why so many people do not like this being an option.

 

You would have to show up at POE with the intent to visit and return, and then spontaneously decide to marry and just leave everything at home in a state of limbo until travel authorization or a green card is issued.

[eckoin 211]

On 5/8/2019 at 4:38 PM, Ben&Zian said:

 

While I don't personally like AOS from within the US and wish it would go away..., it's past that point now. Intent was determined at entry with immigrations so, OP is fine.

It can't go away, unless the entire US immigration system is overhauled. You can't reasonably expect people on student or work visas to drop everything and go back to their country to await a spousal or other relative visa, and there is no good way to ban toruist visa adjustments either, in large part because of DACA issues and those who didn't get DACA in time. 

23 hours ago, Cryssiekins said:

Well... no.  Had you known prior to entering the US and planned to stay and adjust, you would be committing visa fraud.  Although, intent is determined at port of entry, so it is technically possible.  And this, the reason why so many people do not like this being an option.

 

You would have to show up at POE with the intent to visit and return, and then spontaneously decide to marry and just leave everything at home in a state of limbo until travel authorization or a green card is issued.

Matters of Cavazos and Ibrahim. 

 

https://www.uscis.gov/ilink/docView/INT/HTML/INT/0-0-0-65300/0-0-0-84911.html

 

https://www.uscis.gov/ilink/docView/INT/HTML/INT/0-0-0-65/0-0-0-4012.html

 

It is CBP policy to question intent, and it is USCIS case guidance to not take intent into consideration after the judgments for Cavazos and Ibrahim. Even if the beneficiary of an immediate relative green card entered the US on a tourist visa with one intent--to adjust status--and told that to USCIS point blank, this on its own will not result in a denial. If there are criminal issues, or perhaps previous immigration fraud, can it play into the decision. 

[geowrian 22,335]

50 minutes ago, eckoin said:

Even if the beneficiary of an immediate relative green card entered the US on a tourist visa with one intent--to adjust status--and told that to USCIS point blank, this on its own will not result in a denial.

I wouldn't recommend actually trying this one.

The general response here is that intent was established at the border and preconceived intent cannot be cause for denial. For all practical purposes, that's where it stops. One can AOS fine and any notion of preconceived intent will not be a problem.

 

At a deeper level, what the courts decided was it's really a matter of actually determining if 1) there was preconceived intent, 2) if there were any material misrepresentations made at POE resulting in an inadmissibility, and 3) the total equities of one's circumstances.

item #1 would be negated if one just outright told them they had intent.

Item #3 weighs having a USC immediate relative very heavily in one's favor.

Item #2 may or may not be deemed material. This one is unique in that it can still technically result in an inadmissibility (if they can actually show that you lied and that lie resulted in being admitted) requiring a waiver. The other 2 items are factors for eligibility for AOS alone.

 

Anyway, this is just theory. Unless somebody actually tests all of the above by making the claim of having lied at POE about intent, it'll stay that way. Either way, I wouldn't suggest testing it.

 

Relevant sections from the decisions referenced (spoiler tag'd for easier scrolling of uninterested readers)

Spoiler

Quote

"Notwithstanding evidence establishing preconceived intent, an application for adjustment of status should as a general rule be granted"

Quote

"We find that the record, while providing some support for the immigration judge's findings, is ambiguous at best with respect to the respondent's actual intentions at the time of his entry. We need not dwell on that question, however, in light of our conclusion that the adverse factor of preconceived intent, if it existed, has been overcome by the equities presented. "

and

Quote

"The immigration judge erred in denying the respondent's application for adjustment of status on the ground that he had a preconceived intent to remain in the United States at the time of his entry as a nonimmigrant where the respondent was eligible for an immigrant visa and his uncontroverted testimony was that he had only intended to visit his family in this country for a short period at the time of his arrival. "

Quote

"The immigration judge also erred by not weighing the respondent's significant family ties since preconceived intent is only one factor to be considered in the exercise of administrative discretion."

 

and a big one...

Quote

We disagree with the findings of the immigration judge and the district director in regard to the respondent's intent at the time of his 1978 entry to the United States. Although the respondent admits knowledge of the visa petition filed by his father, he has consistently stated, both in an affidavit signed on September 12, 1978, and at the hearing, that he only intended to visit his family for a short period until he arrived in this country, at which time they convinced him to stay. As counsel points o ut, the respondent had an approved visa petition and could easily have obtained an immigrant visa if he had intended to live permanently in the United States. 2/ Although the respondent admits that he did not inform the consul of his approved visa petition, he asserts that he was not asked whether a petition had been filed on his behalf. The Service was unable to obtain the respondent's nonimmigrant visa application to establish that he lied to the consul. Furthermore, the consul indicated that a visa might have been granted anyway, even if the respondent's true status had been known. Under the circumstances presented, we are not persuaded that the respondent h ad a preconceived intention to remain in the United States when he applied for a visitor's visa and entered the country.

In any case, as counsel for the respondent notes, a preconceived intent is only one factor to be considered in exercising discretion on an adjustment application, so the immigration judge erred in finding the respondent ineligible to adjust on that basis alone. See Matter of Ibrahim , 18 I&N Dec. 55 (BIA 1981); Matter of Cavazos , 17 I&N Dec. 215 (BIA 1980). The record reflects that the respondent's parents and siblings are United States citizens and lawful permanent residents and that he has a United States citizen spouse and child. These are significant equities which the immigration judge failed to consider in denying the respondent's application.

This basically says they were not convinced that he lied about intent, and that even if he did, intent alone didn't overcome the equities of having multiple USC relatives in the US.

 

[Crazy Cat 39,193]

1 hour ago, eckoin said:

Even if the beneficiary of an immediate relative green card entered the US on a tourist visa with one intent--to adjust status--and told that to USCIS point blank, this on its own will not result in a denial.

At that point, there would be admission of misrepresentation.  Then, a denial is more than possible......

https://www.soundimmigration.com/can-i-enter-on-a-visitors-visa-b-2-and-then-adjust-status-to-permanent-resident/

 

 

[Boiler 43,401]

Quote

 

Wait, but doesn’t your law firm do ESTA/B-2 adjustments?

Yes, we represent B-2 and ESTA clients in adjustment cases all the time. But in all our cases one thing has to always be true: the foreign national did not make the decision to seek residency until after she came to the United States. If we think the person entered with preformed immigrant intent we will not take the case, period. What do these scenarios look like? Here are some examples:

Canadian girlfriend enters the U.S. to see her U.S. citizen boyfriend. She had no idea he was going to propose, but he pops the question. Then they come to us to look at their options. Since she had never considered residency until after he proposed, there is no preformed intent.

A young man comes from Ireland to go skateboarding with his friends. He meets a U.S. citizen, they fall  in love and get engaged. They had never even met before his arrival, and he entered with plans for only a short trip, so there is no preformed intent.

An Australian businessman has been dating a U.S. citizen flight attendant. They’ve traveled extensively and during a trip to the U.S. decide they do want to get marred and so they come to our law firm. Since there were no plans to pursue residency at the time he entered the U.S., the client is eligible to move forward with adjustment.

 

Strikes me these examples are all assumptions, how would the Lawyer possibly know? 

[eckoin 211]

@missileman I agree with @geowrian's interpretation.

 

This is not something anyone should want to test, but the point is, the judgment states 

 

We find that the record, while providing some support for the immigration judge's findings, is ambiguous at best with respect to the respondent's actual intentions at the time of his entry. We need not dwell on that question, however, in light of our conclusion that the adverse factor of preconceived intent, if it existed, has been overcome by the equities presented.

 

The judge in this specific case may not have had enough to determine intent. However, even if the immigrant had preconceived intent, having a US citizen spouse and child outweighs the preconceived intent, whether or not it existed. 

 

Then there is the matter of materiality, and this has not been ruled material enough, when the circumstances are that US citizen immediate relatives exist. 

 

So should anyone flaunt their potential misrepresentation of intent at the POE? No, that would be erratic at best. 

 

But even if USCIS knew for a fact that there was misrepresentation of intent, applying based on relationships to US citizens is warranted regardless, if that's the only issue with the case. 

[PolskaKielbasia 67]

Here's a funny story from another forum of someone who had the intent to adjust on a B2 when he came into the US with his wife:

Quote

 

My wife and I did it a bit backwards, though. She had a B1/B2 visa, so we came to the States and then applied for a green card within the 6 months. It was my understanding that once you apply, the time limit on the visa is waived and she can stay until she's accepted or denied. However, at her green card interview, the agent (who was terribly rude and seemed to have mood swings during the 30 minute interview) said by doing this we broke immigration law, and basically forced my wife to admit to this before we could finish the interview process.

 

I don't know if she is right that we broke immigration law or not, but that interview was awful. She made it sound like my wife was going to be denied because of the way we chose to do it. We were sweating bullets and shaking. Then, after another mood swing, the lady politely said congratulations, walked us to the door, and said we'd receive the green card in a couple weeks. One of the worst experiences of my life.

 

 

Edited May 10, 2019 by PolskaKielbasia

[geowrian 22,335]

4 minutes ago, eckoin said:

We find that the record, while providing some support for the immigration judge's findings, is ambiguous at best with respect to the respondent's actual intentions at the time of his entry. We need not dwell on that question, however, in light of our conclusion that the adverse factor of preconceived intent, if it existed, has been overcome by the equities presented.

 

The judge in this specific case may not have had enough to determine intent. However, even if the immigrant had preconceived intent, having a US citizen spouse and child outweighs the preconceived intent, whether or not it existed. 

Just to clarify, the adverse factor of preconceived intent was overcome by the specific equities presented in that case. Extending this to a blanket statement is not necessarily correct.

 

A number of factors in that case included a wife that he had known for a number of years prior to marriage, he had been married and living with her for some time after marriage by the time AOS was adjudicated, and he had a 3 year old USC child with her (born prior to his entry). He also had a clean record (not just no crimes that woudl result in an inadmissability).

It would be incorrect to simplify that down to him being married to a USC and that factor alone overcomes everything else. Could it? Yes. Does it always do so? Not necessarily. In that specific case, he met the bar of having substantial equities (" Under that Instruction [245.3(b)], substantial equities are considered to exist if the facts are such that the alien would be granted voluntary departure until he is invited to appear at a United States consulate to apply for an immigrant visa."). in practical terms, I don't see it ever being an issue for any IR of a USC.

[eckoin 211]

31 minutes ago, geowrian said:

Just to clarify, the adverse factor of preconceived intent was overcome by the specific equities presented in that case. Extending this to a blanket statement is not necessarily correct.

Agree with everything you said. 

31 minutes ago, geowrian said:

A number of factors in that case included a wife that he had known for a number of years prior to marriage, he had been married and living with her for some time after marriage by the time AOS was adjudicated, and he had a 3 year old USC child with her (born prior to his entry). He also had a clean record (not just no crimes that woudl result in an inadmissability).

I think it would be a tough sell if someone were to adjust status based on marriage to a person they didn't know beforehand after arriving on a tourist visa. A child may or may not have played a vital role, and I'd be surprised if "but they had no children" would come up. But overall, yes, the judgment was based on this case itself. 

 

And I do agree that any other present factors, like a criminal record of any sort or previous immigration fraud, would change things, probably drastically. 

 

31 minutes ago, geowrian said:

It would be incorrect to simplify that down to him being married to a USC and that factor alone overcomes everything else. Could it? Yes. Does it always do so? Not necessarily. In that specific case, he met the bar of having substantial equities (" Under that Instruction [245.3(b)], substantial equities are considered to exist if the facts are such that the alien would be granted voluntary departure until he is invited to appear at a United States consulate to apply for an immigrant visa.").

Agree... 

31 minutes ago, geowrian said:

in practical terms, I don't see it ever being an issue for any IR of a USC.

And agree. Since this is a commonly cited case in USCIS, and from hearsay, part of the manual the IOs use, it's no surprise why the matter of intent rarely comes up during AOS interviews.

[Boiler 43,401]

I actually know an IJ and no I would never bring up some of the stuff I read on here.

 

I was invited to a function once, quite interesting.

 

My expectation assuming this went all the way is that you would have both an unhappy Prosecutor and IJ as both have far more important issues to attend to, find it hard to see a Deportation order or a waiver being required. Maybe the latter if it was egregious, but they know, we know a waiver is just a time and money issue.