Fiancee Visa Question

[Deputy Purple 1,294]

In theory they can't deny her AOS.

In practice, completely different. I see it happen all the time. There are a lot of immigrants in my area (San Diego). I've seen numerous people try this route, and have been denied.

You're in San Diego, which seems to stand apart from just about every other region when it comes to how hardline USCIS is on grey areas (example the AOS for VWP Overstayers, they were the hardests of all and held-out denying even after the official word went otherwise).

Also, unless you know every single little detail of the cases you can't say for certain everything that lead to the denials.

[Deputy Purple 1,294]

It's irrelevant. They can't deny solely for preconceived intent. That practice ended with the BIA decision in Matter of Battista in 1987:

http://www.uscis.gov....html#0-0-0-310

...

If you have research that contradicts what I've said above then please share it, especially if you have evidence that USCIS is denying AOS because the applicant had a previously approved petition. That would be a bombshell to some of the people in the second AOS forum here on VJ.

Thanks Jim...

[J and S 38]

You're in San Diego, which seems to stand apart from just about every other region when it comes to how hardline USCIS is on grey areas (example the AOS for VWP Overstayers, they were the hardests of all and held-out denying even after the official word went otherwise).

Also, unless you know every single little detail of the cases you can't say for certain everything that lead to the denials.

Quite true. San Diego is much harsher when people marry here on Tourist visa.

Also, I do know some of the specific details. These people were my friends or family members of people I work with (I'm in public service), mostly Brasilians or Mexicans. But as you said, San Diego stands apart, and in my opinion with good reason considering we're a border city.

[Harpa Timsah 13,258]

Quite true. San Diego is much harsher when people marry here on Tourist visa.

Also, I do know some of the specific details. These people were my friends or family members of people I work with (I'm in public service), mostly Brasilians or Mexicans. But as you said, San Diego stands apart, and in my opinion with good reason considering we're a border city.

If they are mexicans, the chances skyrocket that they entered illegally, not on a tourist visa. You don't know the details of their cases, or what was said at the border. People who enter illegally cannot adjust. You can't trust stories told thirdhand.

[Harpa Timsah 13,258]

Ugh, can no longer edit, but wanted to write....

Quite true. San Diego is much harsher when people marry here on Tourist visa.

Also, I do know some of the specific details. These people were my friends or family members of people I work with (I'm in public service), mostly Brasilians or Mexicans. But as you said, San Diego stands apart, and in my opinion with good reason considering we're a border city.

If they are mexicans, the chances skyrocket that they entered illegally, not on a tourist visa. You don't know the details of their cases, or what was said at the border, or what happened to them after they got here (claiming to be a USC, other crimes). People who enter illegally cannot adjust.

Also, you can't trust stories told secondhand about friends or family members of people you are acquainted with. I also hear bad immigration stories, and people fudge the truth to make them appear to be victims. I remember someone talking about a couple that was here "legally" and then became illegal. The people exclaimed "how can that happen!" and everyone they told it to agreed heartily. "Wow, what an injustice!" I assume it was quite simple: they overstayed whatever work visa they had. Not an injustice at all, but rather, the couple didn't follow the terms of their visa. IOs are not capricious - they work with a standard set of laws, with little variation from one place to another, and any variation has a precedent in law (the VWP-overstay situation for instance).

[Casprd 167]

The AOS and intent stuff is a moot point. The facts are they filed for K-1 and then got married so the K-1 isn't an option. They already have plans for her to go back to Lithuania so they need information on the correct way to do this now. That would be withdrawing the K-1 and filing for a CR-1 (I-130). This is the correct thing to do and I encourage them to stick to this plan. Personally I don't care whether they had intent or not or if/what problems it causes at AOS. Everytime someone comes on a tourist visa or vwp and adjusts status it just proves that the consulates are correct to treat every visa as an intending immigrant and makes it harder for everyone else.

[Deputy Purple 1,294]

They already have plans for her to go back to Lithuania so they need information on the correct way to do this now. That would be withdrawing the K-1 and filing for a CR-1 (I-130). This is the correct thing to do and I encourage them to stick to this plan. Personally I don't care whether they had intent or not or if/what problems it causes at AOS. Everytime someone comes on a tourist visa or vwp and adjusts status it just proves that the consulates are correct to treat every visa as an intending immigrant and makes it harder for everyone else.

Don't let your personal feelings on Tourist/VWP AOS could this issue.

I personally hate it when people use Tourist/VWP with intent to AOS before they even enter.

I personally would like to see AOS from Tourist/WVP to be removed as an option because it does get abused and if gone it would make it easier for some people to get Tourist Visas.

That is irrelevant, the OP can have his wife remain and AOS in country. They won't break any laws by doing so.

When someone wasn't trying to skirt the law I have no problem recommending they avoid the heartache of separation we had to endure and use the loophole to AOS.

[J and S 38]

Ugh, can no longer edit, but wanted to write....

If they are mexicans, the chances skyrocket that they entered illegally, not on a tourist visa. You don't know the details of their cases, or what was said at the border, or what happened to them after they got here (claiming to be a USC, other crimes). People who enter illegally cannot adjust.

Also, you can't trust stories told secondhand about friends or family members of people you are acquainted with. I also hear bad immigration stories, and people fudge the truth to make them appear to be victims. I remember someone talking about a couple that was here "legally" and then became illegal. The people exclaimed "how can that happen!" and everyone they told it to agreed heartily. "Wow, what an injustice!" I assume it was quite simple: they overstayed whatever work visa they had. Not an injustice at all, but rather, the couple didn't follow the terms of their visa. IOs are not capricious - they work with a standard set of laws, with little variation from one place to another, and any variation has a precedent in law (the VWP-overstay situation for instance).

Funny how you told me not to assume, and you did it yourself.

I'm not going to go into someone else's personal details on the internet. But two situations specifically, I was helping sort the paperwork and was good friends.

Do people lie? Of course. Do people stay here illegally? More than I can care to count. Is that why they're more harsh? Absolutely. Does that mean I'll assume the worst of people I know well and think they're just like everyone else? No. Shame on me if I did.

[Lynn n Sam 57]

OK, I'm fairly new with all of this immigration stuff and I'm looking for clarification because my attorney told me it was illegal for my fiance to come to the US to marry on a tourist visa. She said it's considered immigration fraud. Is this incorrect or am I the one getting things confused?

Thanks!

[Deputy Purple 1,294]

OK, I'm fairly new with all of this immigration stuff and I'm looking for clarification because my attorney told me it was illegal for my fiance to come to the US to marry on a tourist visa. She said it's considered immigration fraud. Is this incorrect or am I the one getting things confused?

If your intend for your Fiancee to enter the US on a Tourist Visa (or VWP), then marry you and Adjust Status to stay that is illegal.

If you intend for your Fiancee to come to the US, marry you and return to her country while your application for her immigrant Visa is processed then there is no problem.

If your Fiancee enters on a Tourist Visa (or VWP), you marry and suddenly realize that you can't bear the thought of being apart for 7 - 12 months for her Immigrant Visa to process so you file for AOS then there is no problem.

The key is Intent at Point of Entry, if she enters on an Tourist Visa (or VWP) with the intent to immigrant then technically she is committing immigration fraud. If CBP suspects immigrant intent they can deny her entry.

The catch 22 for USCIS is that at AOS time they can't deny solely on immigrant intent, they need to prove that the immigrant misrepresented their intent at POE. For example CBP finds all of the documents required for AOS and wedding plans in her luggage (yes they to random checks) so they ask her about it and she lies denying having a US Citizen Fiancee. They have essentially set her up for Material Misrepresentation.

[Harpa Timsah 13,258]

Funny how you told me not to assume, and you did it yourself.

I'm not going to go into someone else's personal details on the internet. But two situations specifically, I was helping sort the paperwork and was good friends.

Do people lie? Of course. Do people stay here illegally? More than I can care to count. Is that why they're more harsh? Absolutely. Does that mean I'll assume the worst of people I know well and think they're just like everyone else? No. Shame on me if I did.

I didn't assume anything. The simple fact remains that they were not denied AOS for entering on a tourist visa. If they were denied, it was for other reasons.

[Lynn n Sam 57]

If your intend for your Fiancee to enter the US on a Tourist Visa (or VWP), then marry you and Adjust Status to stay that is illegal.

If you intend for your Fiancee to come to the US, marry you and return to her country while your application for her immigrant Visa is processed then there is no problem.

If your Fiancee enters on a Tourist Visa (or VWP), you marry and suddenly realize that you can't bear the thought of being apart for 7 - 12 months for her Immigrant Visa to process so you file for AOS then there is no problem.

The key is Intent at Point of Entry, if she enters on an Tourist Visa (or VWP) with the intent to immigrant then technically she is committing immigration fraud. If CBP suspects immigrant intent they can deny her entry.

The catch 22 for USCIS is that at AOS time they can't deny solely on immigrant intent, they need to prove that the immigrant misrepresented their intent at POE. For example CBP finds all of the documents required for AOS and wedding plans in her luggage (yes they to random checks) so they ask her about it and she lies denying having a US Citizen Fiancee. They have essentially set her up for Material Misrepresentation.

Ahhhh, ok I understand. Well, it was our intent originally that he come here to visit, marry, he goes back to his country and then apply via K3 or CR-1. Now I'm curious, which way is easier (or shall I say which way do you get better positive results from) -- K1 or CR-1?

Thanks for the clarification. VJ is an awesome site and very insightful and helpful!

[Deputy Purple 1,294]

Ahhhh, ok I understand. Well, it was our intent originally that he come here to visit, marry, he goes back to his country and then apply via K3 or CR-1.

That would be legal

Now I'm curious, which way is easier (or shall I say which way do you get better positive results from) -- K1 or CR-1?

In my opinion neither is easier but the CR-1 Visa has the benefit of being cheaper in the long run and results in a Greencard immediately upon entering the US so he can start looking for work, get a Drivers License immediately.

K-1 may be quicker to get him here only by 4 - 6 weeks.

[TiklingGuy 211]

I just want to say that I am not smart enough to answer to this thread.

[J and S 38]

I didn't assume anything. The simple fact remains that they were not denied AOS for entering on a tourist visa. If they were denied, it was for other reasons.

Simple fact when you were neither there nor know the facts of their case.

You're awfully sure of yourself for not knowing anything about the specific case at all.

Edited July 27, 2011 by J and S