B1/B2 tourist visa to AOS

[HeatDeath 430]

As far as the CBP regulations are concerned, if you show up at the border with intent to immigrate, you will be denied entry unless you have an immigrant visa or a K-1 nonimmigrant visa.

As far as CBP daily practice is concerned, the individual officer may not be too worried about a Canadian married to an American. Or he may be. Entry is, after all, at the discretion of the individual officer.

Once you are past CBP and actually in the US:

The strict wording of the legislation says you cannot adjust status from a tourist visa. Period. Full stop.

Case law and long standing precedent says you can adjust status from a tourist visa, even if you had immigrant intent at the time you crossed the border, as long as there are "no other adverse factors" in your case.

USCIS daily practice says that you will face increased scrutiny if you take this path, and while you will probably be approved, the negative consequences if you are denied are significantly harder to overcome.

It is therefore a significantly riskier approach, and one that you will not find generally advised here.

The VJ TOS requires us to only advise people based on the strict wording of the legislation, which is by far the safest and most reliable approach to take anyways.

[Beesho 0]

Hi everyone,

Thanks so much for the help you've given so far!

I want to add that when I applied (and was granted) the B1/B2 I was already married to my American wife and stated that fact both on the application and in the interview. Both times I entered the US they asked if I had family in the US and I answered truthfully that yes, I have family and was going to visit them. I also told them that I am married to an American. They did not seem at all concerned about this.

I applied for the B1/B2 visa originally to go to a short-term university course and visit my wife's family. Can they really charge me with fraud now? I went to the US for that reason and came back. I went again for another program (on the same visa) and came back. What if when I enter the US this time I tell them that I'm planning to immigrate? Would that make it harder for them to charge me with this?

The problem with the DCF is that it is not possible to do this in my country. Palestine is under occupation and, unfortunately, there is no way for my wife to be a "legal resident" here. Basically, she's been a "tourist" in this country for almost three years. We have talked to the US Consulate here and they said there is no way to do this unless she is a legal resident (an impossibility). Also, the Fiance visa takes a very long time from here. I have a few friends who have been in processing for this for 10 months or more. I am scared to start this process and be stuck. Also, wouldn't applying for a "fiance" visa when you've been married for three years count as fraud, too?

I'm pretty sure I've seen cases on this forum of people who did AOS from a B1/B2 visa. If anyone has done this, can we be in touch?

Thanks again.

Salaaam Ashraf....

First let me tell you forget about the Fiance visa, it is not for you, you are married. So you have two options:

1. Have your American wife move back to the U.S. and apply for CR-1/IR-1 visa (immigrant visa) for you. You can go and visit her and stay with her on your tourist visa while the petition is being processed, that way you won't be apart from your wife. Normally, from start to finish you need about 9 months for the petition to be over with and you getting the immigrant visa from the Jerusalem Consulate. I beleive you can stay in the U.S. for 6 months and have to leave again.......so hopefully you won't be apart from your wife for a long time. And if they ask you again why you are coming to the U.S., just say the truth as you always had...coming to visit family, which it is the truth. I think this is your best option as you will receive your green card two weeks after you enter the U.S. on your immigrant visa.

2. Option two, come the US on you Tourist Visa and do AOS, but you are taking a big risk here!!! they might or might not approve you AOS.

So, use your tourist visa right and to your advantage, move back with your wife here for 6 months, but be prepared to go back to Palestine after 6 months......but by then you immigrant petition would close close to get to arrive at the Jerusalem consulate...

goodluck

[sachinky 465]

Please do not advise the OP to circumvent immigration laws by using a nonimmigrant B2 visa to AOS with prior immigrant intent. That is ILLEGAL and absolutely against the VJ TOS.

[Ashraf_Sarah 0]

Thank you all for your quick responses and sharing your thoughts. Maybe I was very open about my plans, but my intentions are to be with my family and our child when he is born. At some point while I'm there, I might consider applying for residency and I need to figure out my options before I travel. I'm also starting school there in the spring. Ideally, it will be great to change my visa status while I'm in the US and become a resident but if I know for sure that it is impossible, then I will try from overseas. Of course I will not mention applying for AOS at the airport, since that the purpose of my visit will be primarily visiting family which I'm legally allowed to do so on my B1/B2 visa.

However, what doesn't make sense to me is if I didn't mention that I'm married to a US citizen in my visa application 3 years ago, then entered the US on a tourist visa and got married to my wife there, then it won't be a fraud. People who enter the US on non-immigration visas, then they get married to a US citizen within a short time sometimes, they are allowed to apply for AOS and remain in the US without considering that as a fraud since their intentions pre-arrival were not to immigrate? I've been married to my wife for almost 3 years and lived all this time together, we are also having a baby and it is a fraud if I apply for AOS while I'm legally staying in the US? I have seen cases on this forum of people overstaying their visas then marrying a US citizen and they apply for AOS with no problems. I thought a fraud is when the non-US citizen provides false information to the USCIS and lie about the real intentions of entering the country, no? I was sure that I can do this while I'm there, since that I did not lie about my relationship and I did not violate any law or overstayed my visa during my two visits to the US. Now I am really confused.

I wish that there is a very clear and direct information on this issue. I was told a lot of times that I can't apply a tourist visa since I'm married to a US citizen, but it was fine. Then I was told that I might be denied entry if the immigration officer noticed that I was entering the US on a tourist visa with my American spouse. They didn't raise any concerns or questions at the airport about my visit purposes what so ever. Can you please guide me to a resource that will know what to do for sure? Should I contact the USCIS while I'm in the US before making any steps? should I ask a lawyer?

If I apply for CR-1 at home, would that mean that my B1/B2 visa will no longer be valid and I can't enter the US without having my CR-1 visa issued first? Can I use my B1/B2 visa to travel while I'm in process?

Again, thank you all very much for your help.

[Boiler 45,922]

Sounds like you have been given a lot of duff information.

The CBP are the people you deal with when entering, not USCIS.

CR1 does not invalidate your B.

If asked you need to show non immigrant intent on that entry.

[skidivawannabe 2]

The kind of replies this post is getting makes me cringe, and it makes me wish the Work, Student, & Tourist Visa Adjusters had a protected forum to go to get actual information feedback without those who scream to go back back and do K1/CR1.

I agree. I think we just should leave people to deal with their cases on their own. We may present facts, possible consequences - w/o making biased remarks as much as possible. I know certain choices seem "unfair" for some people but at the end of the day, it doesn't affect our own cases. We can't generalize that people who adjusted status from a non-immigrant visa are all "lazy" or are all circumventing their way around the laws. How sure are we that all K1 visa holders are truly doing it the "legal" way too? I've heard of stories of people getting a k1 solely to be able to enter and live in the states, only to leave the USC later on?

Good luck on your decision.

[ZaheersShezadi 0]

Hi everyone,

Thanks so much for the help you've given so far!

I want to add that when I applied (and was granted) the B1/B2 I was already married to my American wife and stated that fact both on the application and in the interview. Both times I entered the US they asked if I had family in the US and I answered truthfully that yes, I have family and was going to visit them. I also told them that I am married to an American. They did not seem at all concerned about this.

I applied for the B1/B2 visa originally to go to a short-term university course and visit my wife's family. Can they really charge me with fraud now? I went to the US for that reason and came back. I went again for another program (on the same visa) and came back. What if when I enter the US this time I tell them that I'm planning to immigrate? Would that make it harder for them to charge me with this?

The problem with the DCF is that it is not possible to do this in my country. Palestine is under occupation and, unfortunately, there is no way for my wife to be a "legal resident" here. Basically, she's been a "tourist" in this country for almost three years. We have talked to the US Consulate here and they said there is no way to do this unless she is a legal resident (an impossibility). Also, the Fiance visa takes a very long time from here. I have a few friends who have been in processing for this for 10 months or more. I am scared to start this process and be stuck. Also, wouldn't applying for a "fiance" visa when you've been married for three years count as fraud, too?

I'm pretty sure I've seen cases on this forum of people who did AOS from a B1/B2 visa. If anyone has done this, can we be in touch?

Thanks again.

I understand what you mean. I wanted to use DCF since I had been in pakistan for a while when we filed for my husband's i-130. But, since I was on a Tourist visa and had no job and still had domicile in USA, I could not file DCF. Another thing is that you NEED Domicile in USA to file the I-864. So, its like a catch 22 anyhow. Well, good luck to you. I am glad that you were able to get that b1/b2 visa with a USC wife. We are also expecting a baby and my husband has been in Administrative Processing for 4 months now and probably wont be able to be here for her birth. We asked the Senator's office for advice on whether we should file for the b1/b2 visa just so he can be here for that. She said that they wont give him one since he already has an immigration application filed and that I am a USC. They said since he expressed his intent to immigrate, they won't grant him the tourist visa. No matter what situation I asked about, she said they just won't do it and kept saying "I have been doing this 20 yrs, and they never grant it". So. Good luck to you. I am so glad that you were lucky enough.

~Tara

[john_and_marlene 162]

USCIS daily practice says that you will face increased scrutiny if you take this path

Where did you get your information regarding the USCIS daily practice???? Posts from VJ members that have taken this path tend to disagree.

[john_and_marlene 162]

However, what doesn't make sense to me is if I didn't mention that I'm married to a US citizen in my visa application 3 years ago, then entered the US on a tourist visa and got married to my wife there, then it won't be a fraud.

If you didn't mention that you were married to a US citizen on a visa application, that would be material misrepresentation and could exclude you from ever getting another visa or any immigration benefit. If you truly did that, I think any plan other than waiting until you have an IR-1 visa before you come back to the U.S. is tremendously risky.

[Boiler 45,922]

???????

Read the OP's posts.

Many people married to USC's visit the US, no big deal.

[john_and_marlene 162]

???????

Read the OP's posts.

Many people married to USC's visit the US, no big deal.

But, they don't get the B2 by not disclosing that they are married to a U.S. citizen. He was claiming in the post that I quoted that it wouldn't be fraud if he had not claimed the marriage on the B2.

Edited February 23, 2010 by john_and_marlene

[Boiler 45,922]

But, they don't get the B2 by not disclosing that they are married to a U.S. citizen. He was claiming in the post that I quoted that it wouldn't be fraud if he had not claimed the marriage on the B2.

Read again

Talking about a theoretical alternate situation.

[john_and_marlene 162]

Read again

Talking about a theoretical alternate situation.

Read again. I gave my theoretical alternate response.

[Boiler 45,922]

If you truly did that

[john_and_marlene 162]

Rather than detracting further from the point I was trying to make, I'll spell it out. You cannot legitimize a future benefit with an earlier misrepresentation. Once the misrepresentation is discovered, all subsequent benefits are rescinded--even including naturalization.