ESTA adjustment?

[Crazy Cat 45,265]

There was a case here a few years ago in which intent and misrep were used to deny an Adjustment case.  The person was sent to secondary after entering via either a B2 or VWP and told CBP they would not adjust status.  Later, the person submitted an I-485.  She was denied after the AOS interview for misrepresentation.   I never heard the final outcome. 

 

Edited August 25 by Crazy Cat

[EM_Vandaveer 2,443]

44 minutes ago, Crazy Cat said:

There was a case here a few years ago in which intent and misrep were used to deny an Adjustment case.  The person was sent to secondary after entering via either a B2 or VWP and told CBP they would not adjust status.  Later, the person submitted an I-485.  She was denied after the AOS interview for misrepresentation.   I never heard the final outcome. 

 

I mean obviously the fact that they were sent to secondary where they specifically stated they wouldn't adjust & THEN applied for adjustment, anyway, is a rather relevant point of fact & not applicable to OP's situation AT ALL....

[EM_Vandaveer 2,443]

1 hour ago, S2N said:

It needs a bit more nuance in there. It is a matter of settled immigration law that intent to adjust at the POE is not sufficient grounds for USCIS or an IJ to deny AOS to the spouse of a USC if preconceived intent is the only bar to AOS. People like calling this fraud here and on other parts of the immigration internet for some reason. It’s not. BIA has a precedent ruling on this, so you’re correct to that extent.

 

USCIS does not like this ruling so they rarely cite preconceived intent as a reason to deny adjustment. If they think you had preconceived intent and don’t want to grant AOS they now will claim misrepresentation at the POE as no one says “I’m going to adjust status since BIA says I can on balance of equities creating this grey area in the law!” when CBP asks why they’re visiting. This is where a lot of the fraud confusion online comes from. I’m not aware of a BIA precedent ruling dealing with USCIS finding thus loophole to the previous BIA ruling.

 

In OP’s case it wouldn’t matter as there’s precious little evidence that anything was misrepresented. They usually only claim that in egregious cases of straight from the airport to the courthouse to the post office.

don't want to? Not really how this works, there are rules and regulations, arbitrarily "not wanting" to grant an immigration benefit is not really a thing with USCIS

[S2N 424]

48 minutes ago, EM_Vandaveer said:

don't want to? Not really how this works, there are rules and regulations, arbitrarily "not wanting" to grant an immigration benefit is not really a thing with USCIS

If you prefer I say it more formally: USCIS doesn’t agree with BIA’s reading of the law on this, but they’re bound by BIA precedent.

 

How they’ve dealt with it in some cases with published internal rulings is they’ve denied AOS for misrepresentation at the POE, like @Crazy Cat mentioned. USCIS cited misrep by omission and stated the BIA precedent on pre-conceived intent isn’t applicable since misrepresentation makes someone inadmissible and as such there was no need for USCIS to perform the balance of equities analysis required by BIA for cases of spousal pre-conceived intent.

 

But you’re correct: the law is that if an intending immigrant is admissible, pre-conceived intent is presumed not to create a bar to adjustment of status for spouses assuming there are no other factors weighing against adjustment when USCIS performs an analysis based on the balance of equities. It’s not fraud and I really wish people would stop saying it was.

 

The better way to phrase it is that for obvious cases of pre-conceived intent that are flagrant, USCIS has claimed that omission is sufficient to create a ban for misrepresentation. I’m not familiar with any BIA precedent ruling on this, but it’s the historical stance of their internal review board.

Edited August 25 by S2N