AOS fraud?

[Reba 2]

Point is however, that if you enter the US on a tourist visa (or Canadian visitor equivalent for any Canucks considering this option) is that if your application to adjust status is denied, You Have No Recourse or Appeal. You will be deported, and you will be banned from re-entering the US.

Yes, probably 90% of the time couples are approved, (statistic not backed up by anything other than I just picked the number out of the ether) even if the IO determines that there was intent upon entry to marry and stay. But if for some reason they think the marriage was entered into for the sole purpose of the green card, or, if they're in a bad mood that day, then the application will be denied and you'll be sent home, never to return. Not legally anyway.

If you and your USC partner are truely in love, then why risk being deported and banned? Just do it the legal and painfully long way, and in the end you'll live happily ever after, rather than looking over your shoulder all the time waiting for ICE to take you away.

[rebeccajo 14]

This topic has been debated and litigated. This is straight out of the court.

Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980)

According to Matter of Cavazos, in the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain.

Also, there have been cases that the USCIS did not use the BIA rule and denied the application on the bases of the preconceived intent. In that case, the application was prolong and much more expensive.

The question from the OP was about people adjusting from a tourist visa. In that instance, Cavazos is a relevant precedent. But it should also be noted that the appelant (Cavozos) was able to establish "sustainable equities" in his win, not the least of which were a wife AND child.

And.........

So that readers to the thread are not confused about VWP entrants who adjust, it should be noted VWP entrants do not have the right of appeal that was available to Cavozos. VWP entrants must be able to prove "sustainable equity" when they appear before their Adjudicating Officer. They will not have the opportunity to argue those equities before a judge.

Link to the BIA decision: (actually several - scroll down to read Cavazos)

http://www.uscis.gov/propub/ProPubVAP.jsp?...23031ff245e8579

Here's also a great read on adjusting from the VWP written by Henry Chang, a well known immigration attorney:

http://www.americanlaw.com/q&a139.html

The safest procedure is to proceed with the fiance petition, obtain a fiance visa from a United States Consulate, and then enter the United States. You must marry within 90 days of entry and then you can file for adjustment of status to permanent residence. This is the procedure that United States Citizenship and Immigration Services ("USCIS") expects you to follow.

The other suggestion you made is riskier. As you know, aliens who enter the United States under the Visa Waiver Program ("VWP") are only entitled to remain in the United States for up to 90 days and cannot change status. In addition, under INA §245© aliens who enter under the VWP are normally not permitted to apply for adjustment of status. However, INA §245© contains an exception for immediate relatives. Therefore, you technically could enter under the VWP, marry your fiancee, and then file a family-based petition for permanent residence and apply for adjustment of status. However, there are additional complications that make this risky.

The VWP permits you to enter as a B-1 or B-2 visitor without a visa. However, visitors are not allowed to have immigrant intent and dual intent is not recognized for these categories. So if you enter as a visitor when your true intention is to enter, marry your fiancee, and then seek adjustment of status, you run the risk of being denied entry for not being a bona fide visitor. If that is all that happens, it just means that you will be turned away and will have to wait for the fiance visa. However, worse things can happen as well.

You could also be accused of material misrepresentation and/or be subjected to summary removal. Material misrepresentation itself is an indefinite bar and immigrant waivers are difficult to obtain. If you are subjected to summary removal also, you will barred for five years in addition to the indefinite bar for the material misrepresentation. Even if you are admitted without problems, you run the risk (although it is not extremely high) that you will be found inadmissible for material misrepresentation at your adjustment interview. As you can see, this option is a bit risky.

Assuming they don't accuse you of material misrepresentation or subject you to summary removal, there is also the issue of preconceived intent. Adjustment of status is considered a privilege and not a right. If USCIS discoverers any negative factors, such as your preconceived intent to be an immigrant at the time that you entered as a visitor, they can normally deny your adjustment of status application even if there was no allegation of fraud. However, there is an exception for spouses of United States citizens. Where a finding of preconceived intent is the only negative factor, a grant of adjustment of status is warranted in the case of an immediate relative. This was established in the precedent decision of Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980).

Edited January 18, 2009 by rebeccajo

[Bobby+Umit 161]

It is not fraud to adjust status from a tourist visa.

No, it isn't, but if the intent is to come to the US on a tourist visa and adjust status then it is fraud. The intent has to be there at the POE.

and just how do you prove that??? ...the USCIS cant. You came out with some 30-60 day rule that went by the wayside.

Never seen anyone fail to adjust status. Even my nephew married a lady from SE Asia, 12 days after she entered as a tourist...never had a problem, and this was their original intent.

I know of two cases where the couple failed to adjust.

One I know of personally. I can't go into much detail, but it will about 5 years before they can try again. (messed up in the interview/POE conflict)

One was from the lawyer I consulted with prior to filling out my petition. That couple is away from each other for three years. (POE conflict)

So, I know it can happen, worst case scenario.

Some people can do it with no problems, some can't. It's up to you if you want to risk it.

And all I can say, I can't imagine someone "just visiting" to be able to stay after getting married till they AOS/AP unless they have tons of money (not working, able to pay bills in their home country which they should still have since they were "just visiting").

I know I can't

If I worked at USCIS, those would be things I would look at when I see an AOS from a visitors visa....

[Bobby+Umit 161]

People including myself are always saying that people that come to the US on a tourist visa with intent to marry and stay are committing fraud and are subject to being deported and banned.

Anyone have a link showing this actually having occured and were deported or banned?

It is against the law to enter on a tourist visa with the intent to marry but how the heck does the government prove it unless they have substantial evidence like letters, email or video?

LOL - it doesn't take substantial evidence, it could take just one slip up in the interview process.... Remember - that one person looking over your case has to make the call.

If they smell something fishy, you, as the applicant, will have to prove it. Not the USCIS.

A lot of people make that mistake.

Burden of proof is on you, not them.

[Dakine 26]

People including myself are always saying that people that come to the US on a tourist visa with intent to marry and stay are committing fraud and are subject to being deported and banned.

Anyone have a link showing this actually having occured and were deported or banned?

It is against the law to enter on a tourist visa with the intent to marry but how the heck does the government prove it unless they have substantial evidence like letters, email or video?

LOL - it doesn't take substantial evidence, it could take just one slip up in the interview process.... Remember - that one person looking over your case has to make the call.

If they smell something fishy, you, as the applicant, will have to prove it. Not the USCIS.

A lot of people make that mistake.

Burden of proof is on you, not them.

"

If they smell something fishy, you, as the applicant, will have to prove it. Not the USCIS.

A lot of people make that mistake"

Sure don't see anything in the news or anywhere showing such!

[Alxmrt 0]

You should be more concerned about your people!! because your obviously an immigrant from the Philippines.. instead of making dumb topics and expect people to like you because of that..

have a nice day...

So you need to offend people racially now that your taking things to heart.

[canuck22 0]

You know, when we were adjusting I was in a constant panic looking for a case of misrepresentation based solely on adjusting from a tourist visa.. I never found any. The cases I did find were always complicated by fraud (using someone else's passport) or criminal background etc.

I'd be interested if someone did find a link. I have since stopped my search since we successfully adjusted.

I am in the same situation with regards to experiencing constant panic. My situation is this: I am Canadain and my fiance is an American. We want to get married in the United States and then apply for AOS, as recommended by an immigration lawyer. This has been our plan all along because we were told that it is much quicker. However, since that interview I have been doing much research and have heard a lot of discussions regarding fraud and misrepresenting oneself at the POE. I mean, if I went across the border to visit my fiance and told them I was going to get married, they would not let me in the country, yet if I told them I was visiting and then we got married I would be misrepresenting myself. But how come there is paperwork that lets you adjust your status if you are not "supposed" to do it this way? How do they determine who is lying and who is not? My other concerns are that I have slowly been planing for my visit to go back and get married and therefore don't have a job. Is this going to come into play? I just had no idea until recently that there was a possibility of getting denied or banned????? for going this route? And now i am scared and uncertain as to what I should do.

I would like to know your situation and the outcome. Did you enter as a tourist knowing you were going to get married? What was the interview like and etc.? I would really appreciate hearing your experiences because now I am not so sure that this is a good way to go but I know it is the quickest. You can feel free to send me a private message if you would prefer.

Thanks so much.

[Melian 0]

The I-129F Petition for Fiancée Visa is intended for American citizens who legitimately show a genuine relationship and intention to marry with a foreign lady.

So my fiance has to go to the interview in drag?

[Reba 2]

I mean, if I went across the border to visit my fiance and told them I was going to get married, they would not let me in the country, yet if I told them I was visiting and then we got married I would be misrepresenting myself. But how come there is paperwork that lets you adjust your status if you are not "supposed" to do it this way?

Because it is perfectly legal to get married on a drunken whim, and stay to adjust status.

How do they determine who is lying and who is not?

In your case, as you have already quit your job and started packing, if when you get to teh border you say "I'm just here for a quick visit" and then you getmarried and apply for AOS, at your interview (and there will be an interview), they will ask you "did you quit your job before you left Canada?" and "did you intend to come to the US and get married and immigrate?", and if you answer "no" to either of those questions, they will say "prove it". If you cannot prove that you did not enter the US with intent to immigrate, (which would require you having to ask people to lie for you) then your application will be denied and you will be deported, with no avenue of appeal.