Clarifications about Intent

[john_and_marlene 162]

I think what makes it so difficult to understand is the adamant and continued responses insisting that it could become an issue and if it does, and you have to prove a negative, you could end up banned. This on top of the fact that there is NO official word that intent is irrelevant makes it very difficult to accept it is so on the word of anonymous posts made by lay people on an unofficial site, especially when there is so much on the line.

This is where you are wrong. Precedent setting decisions from the BIA are official word. Court rulings have established that for the immediate family member of a USC, prior intent to immigrate, working without authorization, and overstays CANNOT be used to deny an adjustment of status.

The confusion is perpetuated by posts that say otherwise or make suggestions that you could end up banned for such action. Those posts are based on speculation and are misleadingly false.

Edited May 11, 2010 by john_and_marlene

[john_and_marlene 162]

TBH I have no idea. Everyone on the forums is just constantly warning against this.

And, there is the problem--perpetuating a misleading perception without factual basis.

[EmVee 4]

And, there is the problem--perpetuating a misleading perception without factual basis.

In my defence...

If your fiance/fiancee came to the US on a tourist visa with the intent of immigration and marriage, and you are not yet married, then he/she should return to his/her home abroad, and the K-1 visa should be filed (using an I-129f) instead of the I-130 to avoid a denial, deportation, or even being banned from re-entry to the US.

If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad, and the I-130 (or along with an I-129f for a K-3 Visa) should be filed with the relative outside of the U.S. to avoid denial, deportation, or even being banned from re-entry to the US.

That's what it says on here on VJ, when you click the guides for AOS. (Not that I actually agree with their advice about returning home no matter what)

[GabiandVi 34]

This is where you are wrong. Precedent setting decisions from the BIA are official word. Court rulings have established that for the immediate family member of a USC, prior intent to immigrate, working without authorization, and overstays CANNOT be used to deny an adjustment of status.

The confusion is perpetuated by posts that say otherwise or make suggestions that you could end up banned for such action. Those posts are based on speculation and are misleadingly false.

The thing is, though, I have to take your word how these decisions are being interpreted and applied. I tend to do so, but there is nothing on USCIS supporting this with regards to the published process of getting your spouse here. Even immigration lawyers, perhaps in an attempt to get money or perhaps out of ignorance, do not seem to know this. I had informal consultations with two of them. Neither of them offered to take the case for a fee, but both of them suggested that my husband return to his country and we go the IR1 route, or at least proceed with caution. I've done a tiny bit of digging on my own on those BIA cases, but it's all Greek to me, or as the Greeks say, it's all Chinese to me. So I'm none the wiser, except through assurances such as yours.

And as EmVee has pointed out, VJ still guides against this. In fact, we would have done this more than two years ago except that I came to VJ for information and was frightened away from the process and thoroughly chastened when I made an honest inquiry about it. And our plan was still to go the IR1 route until a couple of months ago after my husband arrived on one last visit before we finally started the IR1 process and would possibly not be allowed to enter again with a pending petition.

The point is, it's no wonder people do not understand this.

[Boiler 45,932]

VJ guides are guides, not legal advice.

[EmVee 4]

VJ guides are guides, not legal advice.

Yes, but the point she is attempting to make is that people's opinions and/or citing past cases are not legal advice either. The entire "intent" situation is a complete mystery because USCIS don't really make it clear enough. As GabiandVi pointed out, not only does VJ and the people who post here vigorously insist to all who inquire that intent is of utmost importance to the AOS process, but immigration lawyers often say the same thing.

I consulted with a lawyer before we got married, and she told us the exact same thing - we may be asked to prove my intentions on entering the US were not to marry and stay here to adjust status. In fact, we were NOT asked about that, or anything really. Our IO had basically approved us before we even walked into his office. But others have not been so lucky.

It's such a grey area, and I feel it's better to err on the side of caution and NOT wilfully use a non-immigrant visa to enter the US in order to marry and obtain an immigrant visa. According to VJ, USCIS and plenty of lawyers, that's not allowed and COULD become an issue at a later stage in the process. It would be irresponsible of anyone here to suggest otherwise.

[john_and_marlene 162]

Yes, but the point she is attempting to make is that people's opinions and/or citing past cases are not legal advice either. The entire "intent" situation is a complete mystery because USCIS don't really make it clear enough. As GabiandVi pointed out, not only does VJ and the people who post here vigorously insist to all who inquire that intent is of utmost importance to the AOS process, but immigration lawyers often say the same thing.

I consulted with a lawyer before we got married, and she told us the exact same thing - we may be asked to prove my intentions on entering the US were not to marry and stay here to adjust status. In fact, we were NOT asked about that, or anything really. Our IO had basically approved us before we even walked into his office. But others have not been so lucky.

It's such a grey area, and I feel it's better to err on the side of caution and NOT wilfully use a non-immigrant visa to enter the US in order to marry and obtain an immigrant visa. According to VJ, USCIS and plenty of lawyers, that's not allowed and COULD become an issue at a later stage in the process. It would be irresponsible of anyone here to suggest otherwise.

I see no grey area here. Prior to 1980 when the BIA made its precedent setting ruling it was a grey area and the decision rested with the USCIS. After the case in 1980 where the USCIS decision was tested on appeal, the grey area became clearer in that under certain circumstances (USC immediate family members) certain actions could no longer be used to deny an adjustment of status. In a later precedent ruling (case of Ibrahim) it was clarified that the limits imposed on the discretion of the USCIS did not apply to those who were not immediate family members of USCs and further outlined the scope of the limits imposed on the USCIS where the applicant was an immediate family member of a USC. To this day, it is no longer a grey area.

There is no dispute that using an entry method that is not proper for immigration when the intent is to immigrate is illegal.

There is no dispute that working without authorization is illegal.

There is no dispute that remaining in the U.S. beyond the authorized stay is illegal.

But, the fact that these are "not allowed" does not translate into a condition that they COULD become an issue at a later stage in the process. For many people applying for adjustment of status, they would be an almost certain denial. For immediate family members of a USC, they WILL NOT be a reason for denial. To provide an inaccurate picture of the possible consequences is not only a disservice to those exploring some very real and available options, but truly irresponsible.

Certainly for the case where the decision to stay and apply for adjustment was made after entry, it is absolutely unreasonable to suggest to them that they may have to prove their intent or may encounter severe risk later in the process if they are immediate family members of a USC. In doing so, you may be convincing them that a perfectly legal and more advantageous path is not acceptable and unduly influencing them to endure undue hardship both personally and financially. This, I find, is irresponsible.

[Boiler 45,932]

Yes, but the point she is attempting to make is that people's opinions and/or citing past cases are not legal advice either. The entire "intent" situation is a complete mystery because USCIS don't really make it clear enough. As GabiandVi pointed out, not only does VJ and the people who post here vigorously insist to all who inquire that intent is of utmost importance to the AOS process, but immigration lawyers often say the same thing.

I consulted with a lawyer before we got married, and she told us the exact same thing - we may be asked to prove my intentions on entering the US were not to marry and stay here to adjust status. In fact, we were NOT asked about that, or anything really. Our IO had basically approved us before we even walked into his office. But others have not been so lucky.

It's such a grey area, and I feel it's better to err on the side of caution and NOT wilfully use a non-immigrant visa to enter the US in order to marry and obtain an immigrant visa. According to VJ, USCIS and plenty of lawyers, that's not allowed and COULD become an issue at a later stage in the process. It would be irresponsible of anyone here to suggest otherwise.

Our Lawyer said the exact opposite as it seems do most Lawyers.

I have only come across 3 cases in 6 years, and those were definitely rubbing their noses in it type situations. When you think of the hundreds of thousands if not millions of cases processed during that time the odds are very very low, more likely to be hit by the proverbial bus. Even in the US.

[EmVee 4]

I see no grey area here. Prior to 1980 when the BIA made its precedent setting ruling it was a grey area and the decision rested with the USCIS. After the case in 1980 where the USCIS decision was tested on appeal, the grey area became clearer in that under certain circumstances (USC immediate family members) certain actions could no longer be used to deny an adjustment of status. In a later precedent ruling (case of Ibrahim) it was clarified that the limits imposed on the discretion of the USCIS did not apply to those who were not immediate family members of USCs and further outlined the scope of the limits imposed on the USCIS where the applicant was an immediate family member of a USC. To this day, it is no longer a grey area.

There is no dispute that using an entry method that is not proper for immigration when the intent is to immigrate is illegal.

There is no dispute that working without authorization is illegal.

There is no dispute that remaining in the U.S. beyond the authorized stay is illegal.

But, the fact that these are "not allowed" does not translate into a condition that they COULD become an issue at a later stage in the process. For many people applying for adjustment of status, they would be an almost certain denial. For immediate family members of a USC, they WILL NOT be a reason for denial. To provide an inaccurate picture of the possible consequences is not only a disservice to those exploring some very real and available options, but truly irresponsible.

This is exactly why I think it's a grey area. If what you're telling me is true, then this website itself gives out advice that isn't accurate, along with lawyers. Boiler's lawyer apparently said the total opposite of what mine did (and what GabiandVi's two lawyers advised when she consulted with them)... so there is conflicting legal advice out there. That just all baffles me. If, as you say, they CANNOT consider intent an issue with marriage, then why are people still advising against it? TBH if I hadn't been told here and by the lawyer that it was illegal for me to go home and get all my stuff, and then come back here, marry and AOS - that's exactly what I would have done! Where were you six months ago? Also, why do people still go home and apply for CR-1? Isn't that totally redundant now (where marriage is concerned)?

I'm genuinely curious as to why there's so much misinformation about something you seem to be making obvious is a pretty simple isse. I'd never once been told throughout the entire process what you've just told me, and it's been in place since the 80s??? I'm getting quite the education here. Hehe.

Certainly for the case where the decision to stay and apply for adjustment was made after entry, it is absolutely unreasonable to suggest to them that they may have to prove their intent or may encounter severe risk later in the process if they are immediate family members of a USC. In doing so, you may be convincing them that a perfectly legal and more advantageous path is not acceptable and unduly influencing them to endure undue hardship both personally and financially. This, I find, is irresponsible.

Just to clarify, I never said that that there was severe risk for people who HADN'T entered with intent. Why would there be a risk for them? That's what I did, and I encountered no problems at all because it was pretty obvious it hadn't been my intent to immigrate when I came here. I would never suggest to anyone who decided to get married AFTER they entered that they're better of going home, that just seems like a waste of time. (Although there are far too many people on VJ who are quick to warn any and everyone who wants to adjust status that they're breaking the law and should go home right away and apply for CR-1. *eyeroll*) The OP who started this thread seemed to be asking if it was okay for her boyfriend to return to Canada to renew a temp visa for convenience sake before he came back over the border to marry and AOS. I was of the understanding this is risky because you're not allowed misrepresent yourself at the border by agreeing to enter the US temporarily and return home afterwards, when you really plan to never leave again... But now I'm being told that doesn't even matter anymore, so I guess the only issue left is to prove the marriage is bonafide??

Edited May 12, 2010 by EmVee

[EmVee 4]

OMG I'm really batting a thousand this morning. Because I can't edit - I've just realized this is Kitty's thread originally, and the question of renewing the work visa in Canada and then coming back to the states was NOT the original question. (I think I was confused because there's also a thread about that somewhere??) But as far as my posts surrounding AOS and intent and stuff, I was solely responding to THAT. (Kitty has a totally different situation)

Sorry for the confusion, folks. I'm having one of those mornings.

[AnnB 0]

Wow a friend of mine should have found this topic before I post another one...you guys don't know about how worried she have been frustrated about the intent stuff...because she know she didn't came with the prior intent...but everybody just say...your fine then...and she's like, is a little stupid...

Well, she and her husband are 18 and have the co-sponsors...you guys think is gonna be any problem because of their age? any case similar to this? Thank you...

[sachinky 465]

So, should we start telling folks from a VWP country to abandon any and all thoughts of a CR-1 / K-1? Why bother--you'd have to be mad to go through with it. USCIS doesn't seem to care about 'prior intent' if John's right. The courts have already made their decision. If 'prior intent' is not an issue, why does everyone seem to harp on about it? If you have a valid B-2, or are from a VWP country, enter, get married, file for AOS. Who is going to give a flying ####?

I'm thinking the only reason against this would be to avoid any and all charges of misrep. "What is the purpose of your visit to the U.S.?" "Visiting Disneyland." When it actually is "Getting married and filing for AOS." Which, if you stated that, could most probably result in you getting denied entry. Why is that? Surely, it must be illegal, then. But if nobody cares, why should we? U.S. immigration law baffles me, I tell ya!

Off-topic, now this is my personal opinion and I will state it here: You will NEVER convince me that a IO is going to follow the law to the T when there is good indication that the people in front of him are lying through their teeth. To me it is amusing that people are convinced that the IO will follow previous case law when the applicants themselves broke plenty of immigration laws (using a non-immigrant visa to immigrate which is visa fraud). Honestly, if you ask me, I don't believe most of the spontaneous weddings stories that some folks on VJ have. Far too convenient. So you met someone, fell in love, married them. Now you don't need to return home to settle your affairs? Sever your many socio-economic ties that you must have demonstrated in order to secure the B-2 in the first place? Really? But that's not my problem. It's up to the CO, and that's where the buck stops. Who's to say the IO won't deny the AOS because they simply don't buy your spontaneous wedding story but give you some other perfectly valid, legal reason. For example, most COs are NOT legally allowed to deny visas for reasons such as age disparity/race/physical attractiveness but they often are, under well-worded reasons such as "lack of bonafide relationship."

Anyway, the information is out there, make an informed decision.

Edited May 19, 2010 by sachinky

[Boiler 45,932]

That is exactly what most lawyers recommend.

It is not always a practical route. It was not for me.

I know I am in the minority.

[sachinky 465]

Yea, yeah, it's illegal and visa fraud, but whose judging you for your moral compass and integrity? Do you get extra brownie points for doing it the "right, legal" way? I could've adjusted my status from my F-1 (which was valid till 07/2010) but I went the CR-1 route. My reasons were different. I obviously had no prior intent since I met my husband in college. I just really wanted him to meet my family and friends BEFORE we tied the knot. I didn't want to bring home a stranger and introduce him as my husband. The CO didn't look at ONE piece of evidence during the interview. I am certain it was because she picked up my passport and said, "Wait, when did you graduate? This is still valid." Met in person in college, no overwhelming desperation to remain in the US---> your visa is approved.

But was it an easy path? No. We were naive and thought we would be done quickly. We assumed that the fact that I lived in the U.S. for four years would mean quick processing for us. The fact that I LEFT the U.S. much, much prior to my visa expiry voluntarily shows that I am not desperate to remain in the U.S. Sort of a 'good faith' gesture. We presumed that those things would count in the +1 corner for us. Did any of those things matter? Not really, NOA2 took 118 days, NVC took 50 odd days (that was my husband's fault, though, to be honest). Sure, the interview was a breeze, but the preceding 9 months? Sheer emotional hell.

[AnnB 0]

Yea, yeah, it's illegal and visa fraud, but whose judging you for your moral compass and integrity? Do you get extra brownie points for doing it the "right, legal" way? I could've adjusted my status from my F-1 (which was valid till 07/2010) but I went the CR-1 route. My reasons were different. I obviously had no prior intent since I met my husband in college. I just really wanted him to meet my family and friends BEFORE we tied the knot. I didn't want to bring home a stranger and introduce him as my husband. The CO didn't look at ONE piece of evidence during the interview. I am certain it was because she picked up my passport and said, "Wait, when did you graduate? This is still valid." Met in person in college, no overwhelming desperation to remain in the US---> your visa is approved.

But was it an easy path? No. We were naive and thought we would be done quickly. We assumed that the fact that I lived in the U.S. for four years would mean quick processing for us. The fact that I LEFT the U.S. much, much prior to my visa expiry voluntarily shows that I am not desperate to remain in the U.S. Sort of a 'good faith' gesture. We presumed that those things would count in the +1 corner for us. Did any of those things matter? Not really, NOA2 took 118 days, NVC took 50 odd days (that was my husband's fault, though, to be honest). Sure, the interview was a breeze, but the preceding 9 months? Sheer emotional hell.

Hi, I don't know so much about all this things but a friend of mine is crazy about everything with immigration, so I have read a lot about it...I understand most of you are like, what an easy way...come here, get married and then apply for AOS...while so many people is doing the harder route...but someone in the family of my bf is an IO...what he told me? what's wrong in coming here on tourist visa? everybody does...he explained a case that was denied about visa fraud...it was:

Someone living in her home country, got married to a USC...while years both of them living there, he applied for a b2 visa to visit the us with her wife...their daughter got sick so his wife came to the us...weeks after he came to the us...WITHOUT ANY ATTEMPT TO STAY HERE...his daughter needed to stay here, so they talked about apply for AOS because of it...what happen? DENIED...VISA FRAUD...for what? because he applied for a visa TO VISIT...and came here and applied for aos...what did they tell to him? that he applied for that visa for the WRONG PURPOSE...

so what the IO wanted to tell me? you have you w.e visa student, tourist...in the moment you applied for that visa is for to VISIT OR TU STUDY...not to get a visa to visit and came here and get married...after a time...you knew that person, fell in love...IT'S OK...you get the visa for the RIGHT purpose but the things CHANGED....

to what he added...any alien WHO (by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa) WANTS TO GET A VISITOR VISA TO COME HERE AND APPLY FOR AOS IS COMMITTING FRAUD...not someone who gets their visa for the right purpose and the things changed...what he told me? so if you have your tourist visa...and you have used and you obtained that visa for the right purpose...then you fell in love with someone...why do you have to take the long process? came here and do it...that's for who doesn't have a b2 f1 j1 w.e visa...and what is visa fraud...you not having a b2 f1 j1 visa...go and get it...came here and get married...so you obtain that visa for the WRONG PURPOSE...that's why there are so many people who entered married on tourist and get their gc...or people who entered and days after get married...and get their gc...that's what an IO told me...and it makes sense to me...but I have tried to explain this so many times to my friend...but she doesn't get it...