AOS from a B-2

[New Jersian 0]

I got contradictory advice from two immigration lawyers, and I would really appreciate your help in navigating through the mess.

We just got married in October in Canada after a very brief engagement. I work in the US, and our goal was to get my wife here as quickly as possible, spending the least time apart.

Based on the advice we got from Lawyer 1, here's what we've done. My wife entered as a B-2 visitor. The immigration officer asked about her purpose of visit, and she said that she was planning to explore graduate schools for next year. This is true. However, she "forgot" to mention that she also has an American husband. She was not asked who she was planning to stay with or how long she was planning to be in the US, and obviously, she didn't volunteer that information.

Immediately after she got here, we filed for the I-130. Our plan had been for her to stay the full 6 months, return to Canada, and wait for the processing there.

Then, we spoke with Lawyer 2. She said that our actions have definitely crossed some lines, complicating the situation. Her advice was that we file for the I-485 AOS and that despite my wife potentially being out of status, our application should be approved. She referred to the following letter clarifying immigration policy on this matter:

www.gani.com/immigration/dd-letters/dd-baltimore.doc

So in a nutshell, who is right? Does Lawyer 2's advice make sense?

Thanks everyone!

Edited December 6, 2009 by New Jersian

[Old Dominion 26]

There is some precedent for the advice from #2. It is complicated, however, by the misuse of the B-2.

Filing the full AOS (with I-130 and work permit application) would give her legal status in the US until it is adjudicated, but the interviewer may raise that difficult question. Usually, USCIS overlooks that a person is out of status after overstaying a visa, so long as the marriage is bona fide. It is not clear that the USCIS would be willing to overlook the misuse (possibly fraudulent).

Far safer for her to return to Canada, and you petition USCIS for the CR-1 spousal visa. Good luck!

[Dakine 26]

I got contradictory advice from two immigration lawyers, and I would really appreciate your help in navigating through the mess.

We just got married in October in Canada after a very brief engagement. I work in the US, and our goal was to get my wife here as quickly as possible, spending the least time apart.

Based on the advice we got from Lawyer 1, here's what we've done. My wife entered as a B-2 visitor. The immigration officer asked about her purpose of visit, and she said that she was planning to explore graduate schools for next year. This is true. However, she "forgot" to mention that she also has an American husband. She was not asked who she was planning to stay with or how long she was planning to be in the US, and obviously, she didn't volunteer that information.

Immediately after she got here, we filed for the I-130. Our plan had been for her to stay the full 6 months, return to Canada, and wait for the processing there.

Then, we spoke with Lawyer 2. She said that our actions have definitely crossed some lines, complicating the situation. Her advice was that we file for the I-485 AOS and that despite my wife potentially being out of status, our application should be approved. She referred to the following letter clarifying immigration policy on this matter:

www.gani.com/immigration/dd-letters/dd-baltimore.doc

So in a nutshell, who is right? Does Lawyer 2's advice make sense?

Thanks everyone!

our application should be approved."

Should be don't count! . The speed CR-1s have been going I'd go back and go thru the normal process.

[New Jersian 0]

Should be don't count! . The speed CR-1s have been going I'd go back and go thru the normal process.

Thing is, she's already here, and they know she's here. So it's likely to come up either way, and we're trying to minimize the risk. Wouldn't there be a downside to route #1?

[thongd4me 69]

I got contradictory advice from two immigration lawyers, and I would really appreciate your help in navigating through the mess.

We just got married in October in Canada after a very brief engagement. I work in the US, and our goal was to get my wife here as quickly as possible, spending the least time apart.

Based on the advice we got from Lawyer 1, here's what we've done. My wife entered as a B-2 visitor. The immigration officer asked about her purpose of visit, and she said that she was planning to explore graduate schools for next year. This is true. However, she "forgot" to mention that she also has an American husband. She was not asked who she was planning to stay with or how long she was planning to be in the US, and obviously, she didn't volunteer that information.

Immediately after she got here, we filed for the I-130. Our plan had been for her to stay the full 6 months, return to Canada, and wait for the processing there.

Then, we spoke with Lawyer 2. She said that our actions have definitely crossed some lines, complicating the situation. Her advice was that we file for the I-485 AOS and that despite my wife potentially being out of status, our application should be approved. She referred to the following letter clarifying immigration policy on this matter:

www.gani.com/immigration/dd-letters/dd-baltimore.doc

So in a nutshell, who is right? Does Lawyer 2's advice make sense?

Thanks everyone!

I read the letter and to interpret it would in fact take perhaps ANOTHER lawyer, because not all of the references stated therein are spelled out in the letter.

In other words, the conditional circumstances according to the applicable statutes are not spelled out, so you have to go and find them yourself

in order to be sure what they say.

The underlining clearly states that waivers can be given at the

discretion of the Attorney General

and that is just offering some kind of HOPE, not a GUARANTEE.

For example, this shows the applicable statutes:

If the evidence clearly establishes that the visa was obtained by fraud or misrepresentation, the application shall be denied, unless the applicant qualifies for a waiver of that ground of excludability pursuant to section 212(i).

So you see, section 212(i) is NOT spelled out in the letter. You have to go there and see what it says and then re-read the letter about 10 more times to digest it

fully in terms of your case. That's what a lawyer gets paid for, to put into plain English wording like that.

And then you have the case law:

However, this same instruction provides the following policy for immediate relatives of United States citizens (spouses, parents, and unmarried children),

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. Matter of Cavazos, Int. Dec. 2750(BIA 1980) clarified and reaffirmed. Matter of Ibrahim, Int. Dec. 2866 (BIA 1981).

Both of them together still mean you are at the mercy of the Attorney General, implying that you better get a lawyer to sort things out.

There's a thin line between hardship and expediency/convenience here.

To get an adjustment you have to be able to prove hardship in some way, other than it just being convenient for you.

What has not been answered is what would be the effect of the I-130 having been filed on the I-485 AOS should you decide to go ahead with that.

Only lawyer #3 can answer that or someone on VJ that has more experience.

I only tried to re-state the question in light of the attachment you provided.

[sachinky 465]

In my lay opinion, it's best if she returns back to Canada ASAP, maybe after the holidays. That way she won't be breaking any rules. Since you've already filed a I-130 she can wait out the processing time there. You can always go up to visit her. If she is questioned about intent at a AOS interview there may be trouble since she was already married to you when she crossed the border. That's grounds for misrepresentation if you try and AOS. However, if she leaves then she's just come to visit/tourism/exploring grad schools. As she had said she was going to. Safe rather than sorry, IMO.

[rsn 135]

moving from AOS from Family Visas to AOS from Work, Student, Tourist visas

[HeatDeath 430]

In my lay opinion, it's best if she returns back to Canada ASAP, maybe after the holidays. That way she won't be breaking any rules. Since you've already filed a I-130 she can wait out the processing time there. You can always go up to visit her. If she is questioned about intent at a AOS interview there may be trouble since she was already married to you when she crossed the border. That's grounds for misrepresentation if you try and AOS. However, if she leaves then she's just come to visit/tourism/exploring grad schools. As she had said she was going to. Safe rather than sorry, IMO.

I agree with him.

Misrepresentation is very, very bad. Avoid misrepresentation at all costs. Not mentioning you was bad, but as long as she does only what she said what she was going to do and returns to Canada, it isn't misrepresentation since her marital status was and remains irrelevant to the purpose of her trip and it simply didn't happen to come up at the PoE.

Edited December 6, 2009 by HeatDeath