90 day rule question

[Boiler 43,771]

Nobody is suggesting it is not annoying but that is of course a subject for another thread.

[Oliversmom 250]

1 hour ago, Duke & Marie said:

It’s highly annoying.. it’s no different than me going there next month on vacation after packing up here, and saying blah, sod waiting I’ll adjust while there.. so long as CBP let me in, it’s all good, 🙄

 

its not just a reason why visas are getting harder to get, it’s a reason why those who follow due process get highly annoyed... why should I have to wait 2 years to be with my husband, when rule breakers get to be with theirs straight away.. system is so messed up. 

1000% agree!

[SunflowerSweet 1,321]

We could spend all day discussing the various "annoying" laws and loopholes that exist across immigration policy and other laws. It doesn't change anything.

 

OP's wife can adjust status granted they have the proper paperwork with them now and she is aware of and okay with the no travel/no work wait.

 

Any question, refer to my signature.

[Suze1 366]

2 hours ago, Duke & Marie said:

system is so messed up

Absolutely! Totally hear ya. I don't like it ONE BIT! But it is what it is.

That's a topic for another thread.

This thread is to help the OP.

 

Edited February 12, 2020 by Suze1

[geowrian 22,336]

The issue I have with "Intent is determined at POE" is that's the short version as it typically applies.

The issue is it's not entirely correct, at least with how it is being strictly & generally applied. There are circumstances where preconceived intent can matter. There are circumstances where admission is not necessarily determined at POE.

The commonly cited Matter of Battista and Matter of Cavazos do not cover every case of preconceived intent. Really, they only cover very specific circumstances. Those circumstances just so happen to cover the vast majority of cases, especially those seen on VJ.

The issue is if somebody not covered by those circumstances reads (or is told) that intent is determined at POE, they may not be prepared and get into bigger trouble.

Edited February 13, 2020 by geowrian

[NikLR 13,220]

Misrep can still happen even though intent is determined and we've seen that happen.  It can also be part of a determining factor just not generally the only factor. 

[Suze1 366]

11 hours ago, geowrian said:

There are circumstances where admission is not necessarily determined at POE.

I actually share lots of your angst about this.

(But, again, this is a matter for another AOS thread, but since moderators are even reacting here, I take that as tacit approval to carry on, to an extent. I suspect they are watching this closely...AGAIN!)

 

So, allow me to share some thoughts on the matter -

 

First, the simple question, and possible correction - "Admission" IS determined at the border (POE). 

I suspect geowrian meant to say that  - "'Intent' is not limited to being determined only by CPB at the POE."

(I am sure he will correct me if he disagrees...smile.)

 

Moving on...

 

The concept of saying "Intention is only determined at POE", is a really misleading shorthand, and is factually wrong, in my view.

What has happened is - The courts have weighed in and decided that in the case of spouses of US Citizens, preconceived intent to enter and adjust status from a non-immigrant visa (B visa, etc.) is ALONE not enough to warrant deportation or deny adjustment.

That is my understanding.

Is coming into the country with the intent to adjust status from a non-immigrant visa fraud? Yes, in my book! You know - the whole - "Truth, whole truth, and nothing but the truth" thingie.

Is it lying to immigration officers? Yes!

Is it abuse of the USCIS and DOS system." Yes. Because they clearly state that they do NOT want such to be supported, condoned, or accepted, and pretty much every visitor knows that. 

Are courts aware of that? Yes!

However, they then go on to adjudicate, thusly - "Well, If that is all there is, then we will not deny your application for adjustment of status solely on that single violation and fraud, in deference to your US citizen spouse."

 

So, people get all bent out of shape arguing the - "But, but, but, you lied...to an immigration office, and that is not allowed...and you need to be punished", and then what happens? - The vast majority do NOT get punished, but get to adjust status, and some people, including me, don't like it. And those people who waited and "played by the rules" feel slighted. Totally understandable, and I share those feelings as well. But, we are all grownups here, and we get it...The world ain't fair, move the &^%$ on.

 

So, there is a consistent conflation here - Between whether fraud has happened, and who cares.

USCIS cares.

DOS cares.

The courts....not so much, IF that is the only violation and you are married to a US citizen.  And if you are NOT married to a US spouse, then the courts side with all the other parties.

 

That conflation - of people who care, and the courts who do not yet seem to care as much - confuses and angers and frustrates a lot of people, understandably.

 

So...to recap -

 

"Intent is determined at the border" is NOT actually what is going on. Intent can be a factor at many points along the immigration, judicial, and procedural roadmap.

 

If the courts did NOT adjudicate as they do, then I bet CPB would have - as explicit policy - a requirement that CPB ask each non-immigrating visitor - "DO YOU PROMISE TO NOT ATTEMPT TO ADJUST STATUS DURING THIS STAY?", or something to that effect.

In other words, they would put it right out there, for the record.

But they generally do not do that. Why? Because, I suspect, they have not been told to do so.

Instead, they often ask more softball questions - "What is the purpose of your visit?", and most likely, "How long is your intended stay?", among others.

 

We all know LAWS exist, and we all know how contracts and legal matters work - If they wanted to be formal and explicit, they have enough lawyers to craft the specific stipulation requests, etc.

That has not happened, I suspect, because they see what happens in court.

They see that EVEN IF THE VISITOR lies, if they ended up married to a US citizen (or already are) then the adjustment of status application can be approved unless there are other violations.

It has to be disheartening to CPB. I get that. I think we all get that.

 

As to the - If we say that intent is only determined at the border - which is not true - then it might be badly interpreted by some - well, that can happen, agreed.

That is why "intent is determined at the border" is not a reliable shorthand to describe the issue.

 

But few want to say what the issue really is (it seems to me), which is -

If you marry or are married to a US Citizen, CPB and USCIS do not want you coming in and adjusting, but if you make it in and then apply for adjustment of status you will likely prevail in immigration court as long as that is the only fraud or abuse or violation against you.

 

This is in no way to be meant as, and I hope not construed as, condoning this behavior. I do not condone it. I even did not do it, and could have. Look at my signature and timeline. Traveled to the US, got married in the US, and returned home to properly file.

In other words - we respected USCIS rules, DOS rules, and immigration court adjudications. 

 

This is my sense of things.

 

So, I agree with both sides. Because both sides see their part of the elephant. But step back a little further, and see the forest. Animals and plants abound!

Edited February 13, 2020 by Suze1

[Suze1 366]

And, yes, I meant CBP, not CPB...

[Boiler 43,771]

Some entrants do get the No COS stamp, it is meaningless.

 

As we say say you can change your intent at Baggage Reclaim.

 

 

[Suze1 366]

Yeah, I bet.

USCIS vs DOS vs Judicial Branch vs Domestic Public Opinion vs Foreign Public Opinion.....

Not everyone is on the same page, you think?!!! NO!!!  That can't happen. lol

 

Again, on another matter - I would like to see single entry visas, for cases like going to weddings, funerals, graduations, etc. With serious consequences for violation, e.g. lifetime bans, etc.

And NO ADJUSTMENT O F STATUS, period.

Come in for what you said you were going to do, and leave. Do not CHANGE YOUR REASON FOR BEING HERE.

It is like taking a can of soda to the checkout register, paying for the soda, and going back and changing it for a Samsung TV and just walking out the store, scott-free. 

 

When I went to China, I had a double entry visa. That was it. I understood the deal...and abided by it. It ain't that freakin' hard.

Edited February 13, 2020 by Suze1

[geowrian 22,336]

2 hours ago, Suze1 said:

First, the simple question, and possible correction - "Admission" IS determined at the border (POE). 

I suspect geowrian meant to say that  - "'Intent' is not limited to being determined only by CPB at the POE."

(I am sure he will correct me if he disagrees...smile.)

No, I actually meant exactly what was typed. It is possible not to be admitted at the border (POE) but later be admitted.

For example, certain TPS recipients.

Also, being paroled is different than being admitted.

 

Quote

The concept of saying "Intention is only determined at POE", is a really misleading shorthand, and is factually wrong, in my view.

What has happened is - The courts have weighed in and decided that in the case of spouses of US Citizens, preconceived intent to enter and adjust status from a non-immigrant visa (B visa, etc.) is ALONE not enough to warrant deportation or deny adjustment.

That is my understanding.

Correct.

Although it is even more nuanced than that. Per the previously referenced BIA decisions, 2 of the key findings were:

1) They must weigh the equities involved. This is one part where being an IR of a USC presents a favorable weight, of which preconceived intent alone does not merit the separation.

Quote

Where a finding of preconceived intent was the only negative factor cited by the immigration judge in denying the respondent's application for adjustment of status as the beneficiary of an approved immediate relative visa petition and no additional adverse matters are apparent in the record, and where significant equities are presented by the respondent's United States citizen wife and child, a grant of adjust-ment of status is warranted as a matter of discretion.

 

2) Eligibility for voluntary departure until an interview for immigrant visa abroad is relevant in determining eligibility for AOS even if preconceived intent is established:

Quote

Notwithstanding evidence establishing preconceived intent, an application for adjustment of status should as a general rule be granted in the exercise of discretion in the case of an immediate relative or other specified alien who under Operations Instruction 245.3(b) and 8 C.F.R. 242.5(a)(2) and (4) could be granted voluntary departure until invited to appear before a United States consul to apply for an immigrant visa.

 

Quote

"Intent is determined at the border" is NOT actually what is going on. Intent can be a factor at many points along the immigration, judicial, and procedural roadmap.

Quote

That is why "intent is determined at the border" is not a reliable shorthand to describe the issue.

👍

It's just a "shorthand" that makes due as a summary of the above for people who meet (among other elements and factors) the above criteria. The issue I have with the expression is that while most people, especially on VJ, do fall under that criteria, not everybody does. Somebody else reading that expression might incorrectly believe it applies to them.

 

It is not an expression you will find in DHS or DOS manuals, nor a BIA decision.

Edited February 13, 2020 by geowrian

[Suze1 366]

Kool.

(I could get more granular too, and split even more hairs, but decided not to...We are on enough of the same page for our purposes here, generally, I think.)

Edited February 13, 2020 by Suze1

[Moe428 129]

Lot of forum police in action here trying to scare the OP.  If there's a problem here, try to lobby congress or someone else to not allow AoS except for fiancee visa.

 

As for OP, I think you are fine to file AoS.