Send K1 Now OR Wait?

[toma1 10]

A friend of mine is in the US on a 10-year tourist visa. She comes in to visit her boyfriend fairly often. They both have money and she is not working illegally. She has always left within the time she was given, which was usually 6 months.

The last time she entered (after a visa run to Mexico), she was briefly detained at immigration and was told that she was using the visa too often and that they were going to stamp her in for 30 days and then she should go home and not come back for a while. They were friendly, not threatening about this, but it scared her a bit.

In the meantime, they have decided to marry. She has completed the paperwork for a K1 visa and she asked me if it is OK if her fiancee sends it while she is still in the US. (There is a question on the 129F about whether your fiancee is currently in the USA, which--if yes-- then asks for the visa type and number.) She wonders if her fiancee should wait until she leaves so that he can say no and leave this section blank. I told her that since she has always been well within the bounds of legality, that little incident at the airport should not have any effect on the K1 process--I think her fiancee should just fill in the data the form asks for and send it off. But I also told her that I would check here as well.

Should her fiancee go ahead and answer yes send it to USCIS now, or should he wait until she is back home so that he can answer no? Obviously they would prefer to send it ASAP.

Edited July 20, 2010 by toma1

[kjenkins86 5]

Whichever he decides to, they will know that she has been to the states. So if I were him I would go ahead and file. Just my opinion.

[Deputy Purple 1,294]

If the decision was spontaneous (sounds like maybe they were a bit spooked by the "Visa Run" re-entry questioning) why not just get married and file AOS with her remaining in country until she has her Greencard?

[rsn 135]

If the decision was spontaneous (sounds like maybe they were a bit spooked by the "Visa Run" re-entry questioning) why not just get married and file AOS with her remaining in country until she has her Greencard?

I second this.

As long as she did not misrepresent herself at the border, there should be no problem with adjusting status.

Edited July 20, 2010 by rsn

[toma1 10]

As long as she did not misrepresent herself at the border, there should be no problem with adjusting status.

I doubt that she misrepresent herself. They were together in Mexico and she probably told them she was visiting her boyfriend. (Actually they have been discussing marriage for a long time, but they had not actually decided--I know this to be true, because she talked to my wife about it all the time.) But you are right that the incident probably tipped the scale once they got home and talked about it.

So even though they asked her to leave after 30 days she could marry and adjust now? They would actually have to get married, though right? Not just get engaged.

So if they got married and filed to adjust status, could she stay in the country past the date that she was stamped in for? Would they give her a new stamp while she waited for approval? I'm just wondering what would happen in the time between when the current stamp expires and the AOS was completed, especially since she was told to leave. I'm sure that they noted this incident in her file.

[rsn 135]

I doubt that she misrepresent herself. They were together in Mexico and she probably told them she was visiting her boyfriend. (Actually they have been discussing marriage for a long time, but they had not actually decided--I know this to be true, because she talked to my wife about it all the time.) But you are right that the incident probably tipped the scale once they got home and talked about it.

So even though they asked her to leave after 30 days she could marry and adjust now? They would actually have to get married, though right? Not just get engaged.

So if they got married and filed to adjust status, could she stay in the country past the date that she was stamped in for? Would they give her a new stamp while she waited for approval? I'm just wondering what would happen in the time between when the current stamp expires and the AOS was completed, especially since she was told to leave. I'm sure that they noted this incident in her file.

As long as she did not misrepresent herself at the border, she should be able to adjust status while in the U.S. She will not receive a new stamp on her I-94. Her NOA1 received after filing the I-485 will be proof of her legal presence here after her I-94 has expired. You are always expected to leave before your I-94 expires, yet adjusting status while here on a tourist visa seems to be quite common.

Yes, they would need to get married before adjusting status.

Edited July 20, 2010 by rsn

[toma1 10]

As long as she did not misrepresent herself at the border, she should be able to adjust status while in the U.S. She will not receive a new stamp on her I-94. Her NOA1 received after filing the I-485 will be proof of her legal presence here after her I-94 has expired. You are always expected to leave before your I-94 expires, yet adjusting status while here on a tourist visa seems to be quite common.

OK I just called her. She's not a member here, but is going to come to this page and look at this.

She said that at the border she was asked, "Would you say yes if your boyfriend asked you to marry him?"

She said, "Yes, I love him."

They then asked the boyfriend, "Are you planning to ask her to marry you?"

He said, "Well, it's not official yet, but yes."

They went back to her and said, "We are going to give you 30 days, but then you need to go back to Thailand and apply for a K1 visa." He wrote "No EOS, AOS and COS" on the I94.

So that's the story, and I assume that is in her file as well. Based on that, it seems that she cannot adjust status. She seems to be too scared to adjust status anyway, because she doesn't want to cause a problem. Any ideas?

Finally, assuming she decides that to go home, can she still file the K1 paperwork now?

FYI: I think her fiancee is an attorney, but unfortunately, not in immigration.

[rsn 135]

OK I just called her. She's not a member here, but is going to come to this page and look at this.

She said that at the border she was asked, "Would you say yes if your boyfriend asked you to marry him?"

She said, "Yes, I love him."

They then asked the boyfriend, "Are you planning to ask her to marry you?"

He said, "Well, it's not official yet, but yes."

They went back to her and said, "We are going to give you 30 days, but then you need to go back to Thailand and apply for a K1 visa." He wrote "No EOS, AOS and COS" on the I94.

So that's the story, and I assume that is in her file as well. Based on that, it seems that she cannot adjust status. She seems to be too scared to adjust status anyway, because she doesn't want to cause a problem. Any ideas?

Finally, assuming she decides that to go home, can she still file the K1 paperwork now?

FYI: I think her fiancee is an attorney, but unfortunately, not in immigration.

Hmm, in that case, I would probably not file to adjust status from the U.S. after all. However, filing for the K1 before she leaves the U.S. should definitely not be a problem.

[toma1 10]

Hmm, in that case, I would probably not file to adjust status from the U.S. after all. However, filing for the K1 before she leaves the U.S. should definitely not be a problem.

Apparently that is a common notation in I94s. I googled the phrase and got a lot of hits. Apparently it is possible to overcome that notation--probably with the help of a lawyer--because the POE inspector cannot legally rule on such cases, but it does set a bar to overcome and it would come up as an issue in the subsequent AOS adjudication. The following is the best info I have seen on this issue, in case this ever comes up again:

If you look at the adjudicator's field manual it states that "any kind of admission or parole" is enough to satisfy the requirements under Sec. 245 of the Act unless disqualified by Sec. 245©.

The "NO

AOS

/COS/EOS", as IE noted, is not a ban to the adjustment per se but a quick indication that some sort of doubt is present regarding the nonimmigrant intent of the applicant.

If you have that notation in your I-94 or passport, you may still apply for adjustment under section 245, it is NOT a bar to the process however, issues related to preconceived intent or misrepresentation will be brought up IF the application for adjustment is sent quickly after entry.

Generally, representations as to future events are not actionable and false representations must be of past or existing facts. Meyer, 1997 SD 21 at 11, 559 NW2d at 255 (citing Ashcoff v. Mobil Oil Corp., 261 NW2d 120, 124 (SD 1977)).

Again, the DAO may raise the issue of misrepresentation or immigrant intent when confronted with the annotations on the I-94, but it's important to repeat it is NOT a ban to adjustment of status. Matter of Batista reads "In any case, as counsel for the respondent notes, a preconceived intent is only one factor to be considered in exercising discretion on an adjustment application, so the immigration judge erred in finding the respondent ineligible to adjust on that basis alone." It's clear that the standards established by Cavazos and Ibrahim and confirmed by Batista, supra, are binding to all adjudicators and immigration courts, they cannot be overridden by the inspector at the port of entry.

IE is correct when he mentions that a presumption without evidence amounts to prejudice only. However, the courts have not ruled on the 30 days presumption. This is the famous 30/60 rule in FAM again being perpetuated into a myth over the internet.

The USCIS is an agent of the Attorney General, not DOS. FAM provisions DO NOT apply to USCIS or the BIA for that matter.

[rsn 135]

OK I just called her. She's not a member here, but is going to come to this page and look at this.

She said that at the border she was asked, "Would you say yes if your boyfriend asked you to marry him?"

She said, "Yes, I love him."

They then asked the boyfriend, "Are you planning to ask her to marry you?"

He said, "Well, it's not official yet, but yes."

They went back to her and said, "We are going to give you 30 days, but then you need to go back to Thailand and apply for a K1 visa." He wrote "No EOS, AOS and COS" on the I94.

So that's the story, and I assume that is in her file as well. Based on that, it seems that she cannot adjust status. She seems to be too scared to adjust status anyway, because she doesn't want to cause a problem. Any ideas?

Finally, assuming she decides that to go home, can she still file the K1 paperwork now?

FYI: I think her fiancee is an attorney, but unfortunately, not in immigration.

I should add that this annotation does not appear to carry any legal weight at CBP cannot prevent someone from adjusting status. So, reversing my quick reply to your message, as long as there is no misrepresentation at the border, she should still be able to adjust status. However, this may be a topic that comes up during the AOS interview.

[rsn 135]

Apparently that is a common notation in I94s. I googled the phrase and got a lot of hits. Apparently it is possible to overcome that notation--probably with the help of a lawyer--because the POE inspector cannot legally rule on such cases, but it does set a bar to overcome and it would come up as an issue in the subsequent AOS adjudication. The following is the best info I have seen on this issue, in case this ever comes up again:

If you look at the adjudicator's field manual it states that "any kind of admission or parole" is enough to satisfy the requirements under Sec. 245 of the Act unless disqualified by Sec. 245©.

The "NO

AOS

/COS/EOS", as IE noted, is not a ban to the adjustment per se but a quick indication that some sort of doubt is present regarding the nonimmigrant intent of the applicant.

If you have that notation in your I-94 or passport, you may still apply for adjustment under section 245, it is NOT a bar to the process however, issues related to preconceived intent or misrepresentation will be brought up IF the application for adjustment is sent quickly after entry.

Generally, representations as to future events are not actionable and false representations must be of past or existing facts. Meyer, 1997 SD 21 at 11, 559 NW2d at 255 (citing Ashcoff v. Mobil Oil Corp., 261 NW2d 120, 124 (SD 1977)).

Again, the DAO may raise the issue of misrepresentation or immigrant intent when confronted with the annotations on the I-94, but it's important to repeat it is NOT a ban to adjustment of status. Matter of Batista reads "In any case, as counsel for the respondent notes, a preconceived intent is only one factor to be considered in exercising discretion on an adjustment application, so the immigration judge erred in finding the respondent ineligible to adjust on that basis alone." It's clear that the standards established by Cavazos and Ibrahim and confirmed by Batista, supra, are binding to all adjudicators and immigration courts, they cannot be overridden by the inspector at the port of entry.

IE is correct when he mentions that a presumption without evidence amounts to prejudice only. However, the courts have not ruled on the 30 days presumption. This is the famous 30/60 rule in FAM again being perpetuated into a myth over the internet.

The USCIS is an agent of the Attorney General, not DOS. FAM provisions DO NOT apply to USCIS or the BIA for that matter.

I am familiar with the portions of the AFM that cite cases designed to illustrate the fact that intent to immirate is not an issue that prevents AOS as long as there was no misrepresentation at the border (Matter of Ibrahim & Matter of Cavasos). However, I did not recall that blurb you cited. You are correct though.

[toma1 10]

I should add that this annotation does not appear to carry any legal weight at CBP cannot prevent someone from adjusting status. So, reversing my quick reply to your message, as long as there is no misrepresentation at the border, she should still be able to adjust status. However, this may be a topic that comes up during the AOS interview.

Yes, but now I am concerned about the "getting married within 30 days after entry on a tourist visa" thing.

[rsn 135]

Yes, but now I am concerned about the "getting married within 30 days after entry on a tourist visa" thing.

What is your specific concern?

[toma1 10]

What is your specific concern?

I am concerned that if they marry within 30 days that will be considered prima facia evidence of immigration intent.

However since they told the inspectors at the border that the engagement was imminent and the inspectors let them in anyway, are you saying it's probably a moot issue? They are in now and that is all that matters. Just tell them at the interview, "They asked us this at the border and we told them the truth: that the engagement was likely, but had not yet happened."

[rsn 135]

I am concerned that if they marry within 30 days that will be considered prima facia evidence of immigration intent.

However since they told the inspectors at the border that the engagement was imminent and the inspectors let them in anyway, are you saying it's probably a moot issue? They are in now and that is all that matters. Just tell them at the interview, "They asked us this at the border and we told them the truth: that the engagement was likely, but had not yet happened."

Have a look at the adjudicators fields manual. Specifically, the cases I mentioned: Matter of Ibrahim and Matter of Cavazos. Those are two cases specifically cited in the AFM that show intent to immigrate is not a reason to deny adjustment of status.

The relevant section can be found here: http://www.uscis.gov....html#0-0-0-660

Edited July 20, 2010 by rsn