Huge Dilema/Concerns

[JimVaPhuong 4,863]

I agree with you. I think you missed my point. My point is, while it may not matter what your actual intent was, when all the immigrating (or not) is done, that does not change the fact that is against the law to enter without the correct visa with immigrant intent.

Sometimes on this forum this tends to get glossed over and I don't think should - just my opinion.

Agreed, and your opinion reflects what the law actually says. If someone stands in front of a CBP officer with a non-immigrant entry pass (with certain exceptions like K1, K3, etc.), knowing full well that they intend to stay and apply for a green card, then they are technically breaking the law. And I certainly wasn't implying that this is ok, even in cases where there isn't sufficient evidence to prove intent. There are already too many people who were born in this country who seem to think that breaking the law is only wrong if you get caught.

My comments were more directed at the OP's case. Whether she thought she was breaking the law or not, she left a trail of intent that a superficial investigation would uncover. I don't agree with John's assertion that USCIS does not investigate intent. In the BIA cases I've read, USCIS originally discovered the evidence of intent because they did investigate it.

[john_and_marlene 162]

I think you missed my point. There are plenty of people who entered with a non-immigrant pass with the intention of immigrating, and they successfully adjusted status. There are also others that were denied when they did not intend to immigrate at the time they entered. Your actual intent; i.e., what's going on in your mind, at the time you enter is not ultimately the deciding factor. What determines your fate is what USCIS believes was your intent when you entered. If the evidence is against you, then it won't much matter what your actual intent was.

This is just plain wrong, and that is absolutely not the conclusions the BIA came to in the precedent cases. You are basing your opinion solely on the Battista case. There were mitigating factors in that case, including the fact that the respondent had an approved immigrant visa petition filed by his father that he could have pursued instead of the non-immigrant B2 visa he ultimately obtained. His counsel pointed this out in arguing against the preconceived intent.

In each case the BIA reiterated that adjustment of status is discretionary. The adjudicator is supposed to weigh the positive and negative factors to determine whether adjustment should be granted. They determined that one negative factor - preconceived intent - does not outweigh multiple positive factors. That does NOT mean that preconceived intent is not a negative factor - the BIA emphatically stated in each case that it IS a negative factor, and that it must be considered. If there aren't enough positive factors to outweigh it, then it CAN be used to deny.

It's also worthwhile to note that none of these cases would be in the BIA files if an immigration judge had not already DENIED the adjustment of status. Are you seriously going to recommend that someone risk this because you believe they'll ultimately win when they appeal to the BIA?

This is beginning to get silly. I defy you to point out any BIA case where the board explicitly stated that preconceived intent cannot EVER be used to deny an adjustment of status to the spouse of a US citizen. There is simply no basis for your blanket statement.

Matter of Cavazos. In reading the decision, you will need to understand the legal difference between should and can. "Should" gives direction while "can" allows discretion. The Cavazos case deals directly with prior intent. Discretion was further limited by the matter of Ibrahim. Although Ibrahim lost his appeal (he was not the immediate relative of a USC) the case was used to clarify further limits on discretion for the adjudicator.

[john_and_marlene 162]

I think you missed my point. There are plenty of people who entered with a non-immigrant pass with the intention of immigrating, and they successfully adjusted status. There are also others that were denied when they did not intend to immigrate at the time they entered. Your actual intent; i.e., what's going on in your mind, at the time you enter is not ultimately the deciding factor. What determines your fate is what USCIS believes was your intent when you entered. If the evidence is against you, then it won't much matter what your actual intent was.

This is just plain wrong, and that is absolutely not the conclusions the BIA came to in the precedent cases. You are basing your opinion solely on the Battista case. There were mitigating factors in that case, including the fact that the respondent had an approved immigrant visa petition filed by his father that he could have pursued instead of the non-immigrant B2 visa he ultimately obtained. His counsel pointed this out in arguing against the preconceived intent.

In each case the BIA reiterated that adjustment of status is discretionary. The adjudicator is supposed to weigh the positive and negative factors to determine whether adjustment should be granted. They determined that one negative factor - preconceived intent - does not outweigh multiple positive factors. That does NOT mean that preconceived intent is not a negative factor - the BIA emphatically stated in each case that it IS a negative factor, and that it must be considered. If there aren't enough positive factors to outweigh it, then it CAN be used to deny.

It's also worthwhile to note that none of these cases would be in the BIA files if an immigration judge had not already DENIED the adjustment of status. Are you seriously going to recommend that someone risk this because you believe they'll ultimately win when they appeal to the BIA?

This is beginning to get silly. I defy you to point out any BIA case where the board explicitly stated that preconceived intent cannot EVER be used to deny an adjustment of status to the spouse of a US citizen. There is simply no basis for your blanket statement.

Matter of Cavazos. In reading the decision, you will need to understand the legal difference between should and can. "Should" gives direction while "can" allows discretion. The Cavazos case deals directly with prior intent. Discretion was further limited by the matter of Ibrahim. Although Ibrahim lost his appeal (he was not the immediate relative of a USC) the case was used to clarify further limits on discretion for the adjudicator.

There is one area of prior intent that will cause a major problem even for an immediate family member of a USC--the intended use of a visa at the time of application. If, at the time of application for a visa, your intent is to use it for other than it's intended purpose then the material misrepresentation in that application is certainly grounds for denial.

If you already have some other visa and subsequently decide to use it for entry with a preconceived notion to immigrate and are the immediate relative of a USC, then you don't have the additional adverse factor of misrepresentation in the visa application.

Certainly, they may consider denial in a case where a B1/B2 was recently granted and quickly used to enter the U.S. followed by marriage and/or an adjustment application based on the misrepresentation during the visa application.

[JimVaPhuong 4,863]

Matter of Cavazos. In reading the decision, you will need to understand the legal difference between should and can. "Should" gives direction while "can" allows discretion. The Cavazos case deals directly with prior intent. Discretion was further limited by the matter of Ibrahim. Although Ibrahim lost his appeal (he was not the immediate relative of a USC) the case was used to clarify further limits on discretion for the adjudicator.

There is one area of prior intent that will cause a major problem even for an immediate family member of a USC--the intended use of a visa at the time of application. If, at the time of application for a visa, your intent is to use it for other than it's intended purpose then the material misrepresentation in that application is certainly grounds for denial.

If you already have some other visa and subsequently decide to use it for entry with a preconceived notion to immigrate and are the immediate relative of a USC, then you don't have the additional adverse factor of misrepresentation in the visa application.

Certainly, they may consider denial in a case where a B1/B2 was recently granted and quickly used to enter the U.S. followed by marriage and/or an adjustment application based on the misrepresentation during the visa application.

I've read the adjudicator's guidelines, and the references those guidelines contain to the relevant case law regarding discretion. There's nothing in the guidelines, based on that case law, that precludes the use of preconceived intent in the case of the spouse of a US citizen. The guidelines even cite preconceived intent as a "serious adverse factor".

As I'm sure you already know, there are precious few cases in the BIA files that are specifically related to this sort of denial for the spouse of a US citizen. None of these cases specifically concluded that preconceived intent could not or should not be considered in the case of the spouse of a US citizen, and in no case was the immigration judge admonished not to consider it. I strongly suspect there are a great many more cases where adjustment is denied for preconceived intent, and those cases never make it as far as the BIA. Like the Supreme Court, the BIA effectively sanctions the decisions in the cases they don't accept for adjudication.

When I get a little extra time today I'll try to find some statistics for denied AOS petitions. In the meantime, let me know when you find a case where it was specifically stated that preconceived intent cannot be used to deny an AOS for the spouse of a US citizen.

[john_and_marlene 162]

I've read the adjudicator's guidelines, and the references those guidelines contain to the relevant case law regarding discretion. There's nothing in the guidelines, based on that case law, that precludes the use of preconceived intent in the case of the spouse of a US citizen. The guidelines even cite preconceived intent as a "serious adverse factor".

As I'm sure you already know, there are precious few cases in the BIA files that are specifically related to this sort of denial for the spouse of a US citizen. None of these cases specifically concluded that preconceived intent could not or should not be considered in the case of the spouse of a US citizen, and in no case was the immigration judge admonished not to consider it. I strongly suspect there are a great many more cases where adjustment is denied for preconceived intent, and those cases never make it as far as the BIA. Like the Supreme Court, the BIA effectively sanctions the decisions in the cases they don't accept for adjudication.

When I get a little extra time today I'll try to find some statistics for denied AOS petitions. In the meantime, let me know when you find a case where it was specifically stated that preconceived intent cannot be used to deny an AOS for the spouse of a US citizen.

What are you not comprehending. The Cavozos case was specific and deals directly with preconceived intent:

"In the absence of other adverse factors, an application for adjustment by an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered as a nonimmigrant with a preconceived intention to remain."

Looking at both the Cavazos case and it's cite and clarification in the Ibrahim case, there is a clear weighting of positive and negative factors and direction in the weighting of those factors. In these and other cases it has been determined that being the immediate relative of a USC is a very weighty positive factor. The Cavazos case is clear in that the positive factor of being an immediate relative outweighs the negative factor of preconceived intent.

[john_and_marlene 162]

In your search for denials, be sure not to include any cases prior to the Matter of Cavazos precedent this time. Rulings before that were not guided by the precendent.

[JimVaPhuong 4,863]

In your search for denials, be sure not to include any cases prior to the Matter of Cavazos precedent this time. Rulings before that were not guided by the precendent.

Really? You rejected Cavazos in another thread because it happened before the Illegal Immigration Act of 1986. At the time, I stated that the IIA/1986 did not change that aspect of the INA.

Anyway, the ruling in Cavazos was NOT that preconceived intent was not an adverse factor, nor that it should not be considered. It was that the equity of having a US citizen wife (and child, in that case) was sufficient to override the adverse factor and tilt the balance of discretion toward approval. Lacking any other adverse factors, USCIS is supposed to approve the AOS, which is precisely what I said in this post, and specifically warned that the AOS might be denied if there was any other adverse history with US immigration authorities. You followed up with a post stating that preconceived intent CANNOT be used as a reason for denial for an immediate relative of a US citizen, which is patently false. It simply cannot be the ONLY reason for denial.

In this case, the AAO denied an appeal for a 212(a) waiver. This gets complicated, so bear with me.

The applicant's US citizen sister petitioned for an immigrant visa, which was approved, though the priority date wasn't current yet. The applicant came to the US using a B2 visa. After his arrival, his father (an LPR) filed an immigrant petition for him, which was also approved, and the priority date was also not current. His father became a citizen 5 years later, and upgraded the petition. His priority date was updated, he was immediately eligible for a visa, and filed for adjustment of status. The district director denied the AOS, determining that he entered with preconceived intent, and that his declaration of non-immigrant intent at the time of entry constituted a material misrepresentation - this made him inadmissible under 212(a)(6)(C )(i). He needed a hardship waiver in order to reapply.

His attorney specifically cited Cavazos and Ibrahim in arguing that the preconceived intent should not have been used on it's own to deny his original petition. The AAO ackowledged the precedent cases, but said that neither involved an applicant with the additional factor of material misrepresentation - the material misrepresentation was derived from his essentially lying about his intent at the time he entered. Because of this, they determined that the district director was correct to deny his AOS, and determine he was inadmissibile. They subsequently denied the appeal for the 212(a) waiver, saying he failed to demonstrate sufficient hardship for his parents.

This is why I specifically asked in a previous post whether the OP was asked by CBP about the purpose of her visit to the US, and what her answer was. Since there is evidence she knew at the time of entry that she would attempt to stay in the US, any false or misleading statement to CBP would be enough to conclude that there was material misrepresentation. The evidence of preconceived intent would be the proof of the misrepresentation. That would be enough to deny the AOS, and make her inadmissible.

[john_and_marlene 162]

Really? You rejected Cavazos in another thread because it happened before the Illegal Immigration Act of 1986.

You'll have to reread that post. I never rejected Cavazos. I rejected the 1977 case that you were citing to prove your point.

In the case of misrepresentation, it is the misrepresentation that causes the denial, not the prior intent. That the misrepresentation was about intent does not make the actual intent the cause for deniald but rather the lie regarding it. I think you'll find that in cases where a finding of misrepresentation is the cause of denial, it is applied where there is question about the intend upon applying for a visa rather than what may or may not have been said at the POE.

[JimVaPhuong 4,863]

You'll have to reread that post. I never rejected Cavazos. I rejected the 1977 case that you were citing to prove your point.

In the case of misrepresentation, it is the misrepresentation that causes the denial, not the prior intent. That the misrepresentation was about intent does not make the actual intent the cause for deniald but rather the lie regarding it. I think you'll find that in cases where a finding of misrepresentation is the cause of denial, it is applied where there is question about the intend upon applying for a visa rather than what may or may not have been said at the POE.

His failure to disclose his immigrant intent created the lie that was determined to be a material misrepresentation. The district director's decision accused him of having immigrant intent at the time of his visa application, but the AAO decision repeatedly cited his intent at the time of his entry as a nonimmigrant, and his failure to disclose this intent to immigration officers, as the source of material misrepresentation.

His counsel specifically cited the CIS operating instructions that say:

Notwithstanding . . . preconceived intent to remain permanently at the time of entry as a nonimmigrant, an adjustment application should not be denied in the exercise of discretion where substantial equities are present in the case.

Pretty much what you've been saying all along. The AAO responded:

We note that the BIA has held, "Operations Instructions generally do not have the force of law. They furnish only general guidance for Service employees and do not confer substantive rights or provide procedures upon which an alien may rely."

They continued:

This particular Operating Instruction appears to derive from cases cited by counsel, Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981) and Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980). The BIA in Ibrahim confirmed and limited the holding of Cavazos that, where there are significant equities present, the adjustment of an alien based on an approved immediate relative petition should not be denied as a matter of discretion where the sole adverse factor is the alien's "preconceived intent" to immigrate when admitted as a nonimmigrant. Neither Ibrahim nor Cavazos involves an alien charged with fraud under the Act. The question in both cases was the authority of the Attorney General to grant or deny adjustment of status to an otherwise qualified alien as a matter of discretion. In the instant case, the applicant has been charged with fraud and is therefore inadmissible. Discretion to grant or deny adjustment or a waiver of inadmissibility may only be exercised after the applicant has established statutory eligibility for a waiver. The matter on appeal is not one of discretion, but of statutory eligibility.

The preconceived intent and the fraud were not two separable acts. His circumstances and actions constituted evidence of his immigrant intent. Failure to disclose his immigrant intent created the fraud that made him inadmissible. The existence of the fraud removed the discretionary authority of USCIS to grant the AOS - he was no longer eligible.

Your position has been that preconceived intent poses no risk for a relative of a US citizen. Don't worry about it. You can't be denied for it. I would counter by saying you can't be convicted for pulling the trigger, but you CAN be convicted for killing someone. The two acts are not separable. I think it's dangerous to advise people otherwise.

[john_and_marlene 162]

His failure to disclose his immigrant intent created the lie that was determined to be a material misrepresentation. The district director's decision accused him of having immigrant intent at the time of his visa application, but the AAO decision repeatedly cited his intent at the time of his entry as a nonimmigrant, and his failure to disclose this intent to immigration officers, as the source of material misrepresentation.

His counsel specifically cited the CIS operating instructions that say:

Notwithstanding . . . preconceived intent to remain permanently at the time of entry as a nonimmigrant, an adjustment application should not be denied in the exercise of discretion where substantial equities are present in the case.

Pretty much what you've been saying all along. The AAO responded:

We note that the BIA has held, "Operations Instructions generally do not have the force of law. They furnish only general guidance for Service employees and do not confer substantive rights or provide procedures upon which an alien may rely."

They continued:

This particular Operating Instruction appears to derive from cases cited by counsel, Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981) and Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980). The BIA in Ibrahim confirmed and limited the holding of Cavazos that, where there are significant equities present, the adjustment of an alien based on an approved immediate relative petition should not be denied as a matter of discretion where the sole adverse factor is the alien's "preconceived intent" to immigrate when admitted as a nonimmigrant. Neither Ibrahim nor Cavazos involves an alien charged with fraud under the Act. The question in both cases was the authority of the Attorney General to grant or deny adjustment of status to an otherwise qualified alien as a matter of discretion. In the instant case, the applicant has been charged with fraud and is therefore inadmissible. Discretion to grant or deny adjustment or a waiver of inadmissibility may only be exercised after the applicant has established statutory eligibility for a waiver. The matter on appeal is not one of discretion, but of statutory eligibility.

The preconceived intent and the fraud were not two separable acts. His circumstances and actions constituted evidence of his immigrant intent. Failure to disclose his immigrant intent created the fraud that made him inadmissible. The existence of the fraud removed the discretionary authority of USCIS to grant the AOS - he was no longer eligible.

Your position has been that preconceived intent poses no risk for a relative of a US citizen. Don't worry about it. You can't be denied for it. I would counter by saying you can't be convicted for pulling the trigger, but you CAN be convicted for killing someone. The two acts are not separable. I think it's dangerous to advise people otherwise.

You are wrong that the acts are not separable. I have always maintained that while the immediate relative of a USC will not be denied for the prior intent, they can be denied for other adverse factors such as misrepresentation. Let me give you two scenarios, very similar, but one with and one without misrepresentation (they are very separate issues).

Scenario 1: Jane is from country X and has a tourist visa for the U.S an has used it in the past for vacationing in the U.S. ####### meets Jane while on vacation in X and they eventually decide to marry. Jane uses her tourist visa to come to the U.S. with the intention of getting married to ####### and adjusting status. Jane is guilty of using the tourist visa with intent to immigrate--but won't be denied adjustment of status because of it. She clearly did not misrepresent her reasons for getting the tourist visa, and is not at risk of material misrepresentation from the visa application.

Scenario 2: ####### meets Jane while on vacation in X and they eventually decide to marry. Jane decides to apply for a tourist visa to go to the U.S. with the intention of getting married to ####### and adjusting status. Jane is guilty of using the tourist visa with intent to immigrate--but won't be denied adjustment of status because of it. Jane is also guilty of material misrepresentation because she has lied on the application for the tourist visa and will very likely be denied adjustment because of it.

In Scenario 2, the prior intent does not increase the degree of denial. The misrepresentation, standing alone, is enough to warrant the denial.

If the only adverse factors are prior intent, working without authorization or overstay and the adjustment applicant is an immediate relative of a USC, then their risk of denial is not increased by those acts. If they have any other adverse factor such as misrepresentation, they can be denied just as any other adjustment applicant with other adverse factors can be denied--and are at no greater risk than others with the same "other adverse factors"

To make the blanket statement that prior intent always increases the risk of denial is simply wrong. It's a disservice to those that do not fall into the risk category, when you immediately assign additional risk of denial if none exists.

Edited June 1, 2010 by john_and_marlene

[JimVaPhuong 4,863]

Scenario 1: Jane is from country X and has a tourist visa for the U.S an has used it in the past for vacationing in the U.S. ####### meets Jane while on vacation in X and they eventually decide to marry. Jane uses her tourist visa to come to the U.S. with the intention of getting married to ####### and adjusting status. Jane is guilty of using the tourist visa with intent to immigrate--but won't be denied adjustment of status because of it. She clearly did not misrepresent her reasons for getting the tourist visa, and is not at risk of material misrepresentation from the visa application.

Nope. Intent to marry and intent to immigrate are not the same thing. It is not illegal to enter with a non-immigrant pass with the intent to marry. It IS illegal to enter with a non-immigrant pass with the intent to REMAIN in the US.

Scenario 2: ####### meets Jane while on vacation in X and they eventually decide to marry. Jane decides to apply for a tourist visa to go to the U.S. with the intention of getting married to ####### and adjusting status. Jane is guilty of using the tourist visa with intent to immigrate--but won't be denied adjustment of status because of it. Jane is also guilty of material misrepresentation because she has lied on the application for the tourist visa and will very likely be denied adjustment because of it.

The only difference between the two is that you've added intent to adjust status; i.e., to immigrate. Yes, this IS illegal.

Please go back and read the OP's posts. She quit her job and moved some of her belongings to the US. Does this indicate prior intent to simply marry in the US, or does this indicate prior intent to REMAIN in the US?

EDIT: Ok, I misread your posts the first time. I didn't see the "adjust status" in the first scenario. The misrepresentation still exists in that scenario, and occurs when she USES the tourist to enter the US with the intention of immigrating. You're saying you can apply honestly for a tourist visa, and then later CHANGE YOUR MIND about why you're coming to the US and NOT be guilty of any illegal intentions.

Edited June 1, 2010 by JimVaPhuong

[Deputy Purple 1,294]

Scenario 1: Jane is from country X and has a tourist visa for the U.S an has used it in the past for vacationing in the U.S. ####### meets Jane while on vacation in X and they eventually decide to marry. Jane uses her tourist visa to come to the U.S. with the intention of getting married to ####### and adjusting status. Jane is guilty of using the tourist visa with intent to immigrate--but won't be denied adjustment of status because of it. She clearly did not misrepresent her reasons for getting the tourist visa, and is not at risk of material misrepresentation from the visa application.

Scenario 2: ####### meets Jane while on vacation in X and they eventually decide to marry. Jane decides to apply for a tourist visa to go to the U.S. with the intention of getting married to ####### and adjusting status. Jane is guilty of using the tourist visa with intent to immigrate--but won't be denied adjustment of status because of it. Jane is also guilty of material misrepresentation because she has lied on the application for the tourist visa and will very likely be denied adjustment because of it.

So the only difference is did Jane specifically misrepresent intent to Adjust Status while on a B-Visa..

In Scenario 1 if CBP asked Jane on her last visit, "What is the purpose of this visit" and she replied with anything other than "To Marry and Adjust Status" then she would have actually committed misrepresentation.

But are you saying that if Jane sells off all of her belongings, quits her job and then is admitted without the above exchange at POE then since she didn't specifically lie she isn't guilty of misrepresentation?

I find it hard to believe that there is not something somewhere in which she has agreed that every time she uses the B-Visa her intent is to return to her country of origin (or at least to leave the US), what about the I-94 (isn't that the form non-immigrant visitors fill-out on the plane before landing)?

At the very least, doesn't the act of entering on a non-immigrant Visa imply non-immigrant intent at the actually time of entry & doing so with said intent is misrepresenting your intent?

Edited June 1, 2010 by Bob 4 Anna

[john_and_marlene 162]

The misrepresentation still exists in that scenario, and occurs when she USES the tourist to enter the US with the intention of immigrating. You're saying you can apply honestly for a tourist visa, and then later CHANGE YOUR MIND about why you're coming to the US and NOT be guilty of any illegal intentions.

I am not saying that you are not guilty of illegal intentions if you use the tourist visa for immigration. I am saying, for adjustment of status as an immediate family member of a USC, it will not cause a denial. Material misrepresentation requires that the person willfully and deliberately presents incorrect information to gain a benefit that, if the truth had been known, would have resulted in the denial of the benefit. The charge of material misrepresentation is generally applied to applications for benefit (they are sworn statements where rights are read to the applicant before signing). I know of no case where the misrepresentation was charged from the POE entry unless linked to a misrepresentation from the application for the benefit or the person is convinced to sign a sworn statement at the POE--and such a charge without that linkage would be extremely difficult to prove. In fact, adjustments occur successfully even when the CBP officer had some doubt and annotated the I-94 with "NO AOS".

I am not suggesting that using a visa for other than it's intended purpose is legal or reasonable or honorable or justifiable.

I am saying that it is done every day in large numbers without the associated charge of misrepresentation.

I am saying that these acts do not automatically link to misrepresentation.

I am saying that it has been decided by the courts that these acts alone (prior intent, working without authorization, overstay) will not cause an adjustment denial for the immediate family member of a USC.

I am saying that there are other adverse factors which can cause denials of adjustment, but if you have those other adverse factors your risk was not increased by the 3 acts that I've mentioned and that a denial risk applies to anyone with those other adverse factors.

I am not saying I agree or like the situation nor that you have to like it or agree with it.

Just because you or I think it should increase the risk, does not mean that it does in practical or legal application.

Edited June 1, 2010 by john_and_marlene

[JimVaPhuong 4,863]

I am not saying that you are not guilty of illegal intentions if you use the tourist visa for immigration. I am saying, for adjustment of status as an immediate family member of a USC, it will not cause a denial. Material misrepresentation requires that the person willfully and deliberately presents incorrect information to gain a benefit that, if the truth had been known, would have resulted in the denial of the benefit. The charge of material misrepresentation is generally applied to applications for benefit (they are sworn statements where rights are read to the applicant before signing). I know of no case where the misrepresentation was charged from the POE entry unless linked to a misrepresentation from the application for the benefit or the person is convinced to sign a sworn statement at the POE--and such a charge without that linkage would be extremely difficult to prove. In fact, adjustments occur successfully even when the CBP officer had some doubt and annotated the I-94 with "NO AOS".

I am not suggesting that using a visa for other than it's intended purpose is legal or reasonable or honorable or justifiable.

I am saying that it is done every day in large numbers without the associated charge of misrepresentation.

I am saying that these acts do not automatically link to misrepresentation.

I am saying that it has been decided by the courts that these acts alone (prior intent, working without authorization, overstay) will not cause an adjustment denial for the immediate family member of a USC.

I am saying that there are other adverse factors which can cause denials of adjustment, but if you have those other adverse factors your risk was not increased by the 3 acts that I've mentioned and that a denial risk applies to anyone with those other adverse factors.

I am not saying I agree or like the situation nor that you have to like it or agree with it.

Just because you or I think it should increase the risk, does not mean that it does in practical or legal application.

Ok, so we've gone from "no way it can be used to deny" to "only if the preconceived intent was determined to be fraud at the time the visa application was submitted, because the applicant signed an oath". Is that correct? So, that must mean Canadians are automatically exempt from ever being found guilty of material misrepresentation because they don't have to sign any documents to enter the US, right?

I can see you're not going to be content until I can produce an actual court case that meets your very narrow criteria. Let me see if I've got this straight:

1. They must have applied for AOS on the basis of being the immediate relative of a US citizen.

2. They must have been determined to have preconceived intent at the time of entry.

3. There must be no mention of preconceived intent at the time the visa application was submitted. In other words, even if the intent existed at that time, it must not have been considered in the ruling.

4. The preconceived intent (at the time of entry) must have been found to constitute a material misrepresentation.

5. They were denied AOS on the basis of the material misrepresentation.

And if I find such a case, that would eliminate your final argument that the fraud could only have occurred at the time the visa application was submitted. Is that correct?

[john_and_marlene 162]

Ok, so we've gone from "no way it can be used to deny" to "only if the preconceived intent was determined to be fraud at the time the visa application was submitted, because the applicant signed an oath". Is that correct? So, that must mean Canadians are automatically exempt from ever being found guilty of material misrepresentation because they don't have to sign any documents to enter the US, right?

I can see you're not going to be content until I can produce an actual court case that meets your very narrow criteria. Let me see if I've got this straight:

1. They must have applied for AOS on the basis of being the immediate relative of a US citizen.

2. They must have been determined to have preconceived intent at the time of entry.

3. There must be no mention of preconceived intent at the time the visa application was submitted. In other words, even if the intent existed at that time, it must not have been considered in the ruling.

4. The preconceived intent (at the time of entry) must have been found to constitute a material misrepresentation.

5. They were denied AOS on the basis of the material misrepresentation.

And if I find such a case, that would eliminate your final argument that the fraud could only have occurred at the time the visa application was submitted. Is that correct?

Why do you keep wanting to put your words into my mouth? I have never said that prior intent to immigrate with a tourist visa was not fraud. It always is. However, I have not moved from my position (and it's the position of the court) that it cannot be used to deny the adjustment for the immediate family member of a USC. Material misrepresentation can be used for denial--always. Why you cannot seem to separate the idea of the intent and the material misrepresentation is beyond me. A finding of prior intent does not equate to material misrepresentation. A person can be guilty of one, both or none--they are not linked.

I now appears to me that your arguements all along have been based on what you think should be true and what you think should be the result rather than objectively looking at reality. I guess you won't rest until you have convinced everyone that it is futile to apply for adjustment with prior intent even though the overwhelming anecdotal evidence, based on the many successful adjustments, and the precedent rulings from the BIA disagree with your point of view.

Edited June 2, 2010 by john_and_marlene