PLEASE HELP!!! Want to marry her but she is illegally here!!

[Ning 619]

Or breaking the speed limit or drink driving, I agree absolutely terrible. Somebody should do something about it.

I wonder why she owes the IRS money, working illegally?

He says she has an IT number as well. Isnt that interesting. Then he says she hasnt been working.

[Boiler 45,932]

ITIN

I can think of no other purpose other than working illegally. It has no relevance to getting a DL.

[ScottThuy 140]

There is a helpline to get professional advice on the subject... 1-866-347-2423 These folks should be able to help address the issue ASAP...

[TBoneTX 45,893]

There is a helpline to get professional advice on the subject... 1-866-347-2423 These folks should be able to help address the issue ASAP...

In consideration of the way in which this thread has degenerated, Scott's advice is the best that could possibly be heeded, si man.

[JimVaPhuong 4,863]

The highlighted portion of the quoted post does not preclude a successful adjustment of status for the immediate family member of a USC and cannot be used as a reason to deny the adjustment of status for the immediate family member of a USC.

Sure it can. Adjustment of status is a discretionary benefit. While it's usually granted when the applicant is found to be eligible, the adjudicator is required to consider adverse factors. Entering the US as a non-immigrant with the preconceived intent to remain in the US is a serious adverse factor.

In the Matter of Baltazar, BIA interim decision #2556, the BIA upheld the deportation of a Philippine national. The immigration judge had determined he was statutorily eligible for adjustment of status by virtue of his marriage to a US citizen, but he applied his discretion in denying it because there was sufficient evidence that the applicant had used a non-immigrant entry with the preconceived intent to immigrate. His actions after his arrival (which included seeking a divorce from his wife in the Philippines) were enough to conclude that his intentions were to remain in the US.

There have also been other cases where the adjustment of status was denied for preconceived intent, but on appeal it was sustained because there were sufficient positive factors to overcome the preconceived intent (for example, Matter of Battista, BIA #1987).

[john_and_marlene 162]

Sure it can. Adjustment of status is a discretionary benefit. While it's usually granted when the applicant is found to be eligible, the adjudicator is required to consider adverse factors. Entering the US as a non-immigrant with the preconceived intent to remain in the US is a serious adverse factor.

In the Matter of Baltazar, BIA interim decision #2556, the BIA upheld the deportation of a Philippine national. The immigration judge had determined he was statutorily eligible for adjustment of status by virtue of his marriage to a US citizen, but he applied his discretion in denying it because there was sufficient evidence that the applicant had used a non-immigrant entry with the preconceived intent to immigrate. His actions after his arrival (which included seeking a divorce from his wife in the Philippines) were enough to conclude that his intentions were to remain in the US.

There have also been other cases where the adjustment of status was denied for preconceived intent, but on appeal it was sustained because there were sufficient positive factors to overcome the preconceived intent (for example, Matter of Battista, BIA #1987).

The Baltazar ruling was in 1977 before the immediate relative precedent was established in 1980 and later codified in the amended INA in 1986 and the Battista ruling specifically states that the denial where the prior intent was the only adverse factor was in err.

Edited May 21, 2010 by john_and_marlene

[Krikit 1,165]

Please keep your responses civil. Thank you.

Moving from General Immigration Discussion to AOS From Other Visa.

[JimVaPhuong 4,863]

The Baltazar ruling was in 1977 before the immediate relative precedent was established in 1980 and later codified in the amended INA in 1986 and the Battista ruling specifically states that the denial where the prior intent was the only adverse factor was in err.

I cited two specific cases, one where preconceived intent was enough to ultimately deny adjustment of status, and one where it wasn't, to make the point that adjustment of status is discretionary and not automatic. You'll notice that I specifically mentioned that the appeal was sustained in the Battista case.

You made a blanket statement that preconceived attempt could not be used as a reason to deny the adjustment of status of a family member of a US citizen. I cited two specific cases where it WAS used to deny. In one case the denial was upheld on appeal, and in the other it was not. The Illegal Immigration Reform act of 1986 did not remove preconceived intent as a reason to deny in the case of a family member of a US citizen, and the BIA did not determine in the Battista case that preconceived intent should not have been considered. Instead, they determined that preconceived intent alone was not enough of an adverse factor to overcome the positive factors in the case, and shift the balance in favor of denial, reinforcing the point that adjustment of status is discretionary.

By the way, both Baltazar and Battista are still provided as precedent cases for adjudicators to refer to when making a determination on an adjustment of status case. Preconceived intent is still considered a serious adverse factor in all adjustment of status cases.

I've read secton 245 of the INA numerous times. Perhaps you can point out to me where it says that preconceived intent cannot be used to deny the adjustment of status of a family member of a US citizen.

[Moonandstar 6]

I was just going through the I-485 instructions, and saw this:

"10. ... You are not eligible for adjustment of status if any of the following apply to you:

D. Your authorized stay expired before you filed this application."

Doesn't that mean she cant adjust if she overstayed?

Edited May 21, 2010 by Moonandstar

[Boiler 45,932]

No

[Moonandstar 6]

No

Uhh, want to explain that a bit more then?

[Boiler 45,932]

Being here out of status does not prevent her adjusting if she entered with inspection.

[Kittyfang 6]

Well, I'm not as good at explaining these kind of things as john_and_marlene and JimVaPhuong, but I'll try to give more details than a simple "no".

The way I understand it is that she will be fine because overstays (when marrying a USC) fall under section 245. So, if you look at the wording, it says that unless you qualify under different reasons (including 245) she cannot adjust with an overstay. But since she qualifies, it doesn't apply to her.

I'm sure someone will come along and be more eloquent than me tho.

[Moonandstar 6]

ooooh.

[ScottThuy 140]

Even though she is here illegally, she did arrive legally, which is how she and he intend to find a way for her to stay by adjusting her status on the expired visa... the reason others have said that she should not leave the US now, is that as soon as she leaves, she will be banned from entering the US at that point and cant adjust at that point...

The fact that she did the right thing at one point (entered on a valid visa) is the flaw in the system that allows her to have an opportunity to possibly stay here permanently...marrying the USC is the key to the loophole

This is a difficult topic for many here to discuss or see discussed as they have gone through every stage of the process legally and are still apart mired in the system... and to see someone being able to be here in the US through an overstay such as this example can be very disheartening...

Edited May 21, 2010 by ScottThuy