Adjustment of Status Question

[sunshine79 7]

Hello,

I talked to an immigration lawyer yesterday and she gave me some advice on bringing my wife here (US) from Canada.

She said my wife could come into the country as a visitor and then we could file for Adjustment of Status to a Green Card while simultaneously applying for a work permit and travel permit. She said the work/travel permits usually get approved in 3-4 months and that the whole process could take 6-9 months. The lawyer said my wife could stay in the US the entire time of the process.

I also read on the internet that doing it this way could be considered fraud because you are saying you are entering the US as a visitor when in reality you have no intention of going back. I have a feeling the lawyer knew this because she said my wife would have to be careful about what she says at the border and not to mention anything about her husband, etc.

This seems like the quickest way of doing things. Has anyone gone this route? Is it safe to do or do people get caught frequently?

[nickm 1]

The lawyer has given false and possibly illegal information. Using a vistor visa to enter the country with the intent of immigrating is against the rules. Unless you enter the country with no "intent" and decide to stay. But as you are married there is obvious intent and she would therfore be breaking the law, which can lead to severe consequences.

Your best bet is to go for the CR1/IR1 spousal visa.

[HeatDeath 430]

Lot of people do go this route. The odds of success are actually quite high. The reason not to do it, besides the simple ethical problem of it actually being technically illegal, is the downside risk.

"Downside risk" is defined as the probability of an event occurring, multiplied by the negative consequences if that event occurs. For example, if you bet a dime on the flip of a coin, the downside risk is 5 cents - the 10 cents you lose in the event of missing the cointoss, multiplied by 0.5 - the odds of missing the cointoss.

In this case the risk of having your AOS denied because of misrepresentation at the border [assuming you get through] is fairly low. I would estimate (for what little that is worth ) 1-2%. BUT, consider the consequences of the legal hassles of a denied AOS, appealing, and a possible multi-year or even lifetime ban from entering the United States. Even 1-2% of that is still a HUGE and unnecessary cost.

Doing this the right way, on the other hand, has negligible downside risk. When you enter on spousal visa, you won't even have an AOS process to get denied. If you AOS from a tourist visa [which is what your lawyer suggested], it could possibly be denied, and your options to appeal would be very limited, and what options exist are long, stressful, and very expensive. The downside risk in a spousal visa is nonexistent compared to the downside risk on AOSing from a tourist visa.

Shortcutting the system by sneaking through CBP, marrying and AOSing seems rational, when looked at simply in terms of cost and delay. That's probably why so many Canadian lawyers recommend it. It is, I will grant you, much faster and significantly less expensive. But when you factor in the relative risks, you have to consider: your future life with your spouse is SO important, even a low probability of catastrophic consequences should be strenuously avoided if it is reasonable to do so. And it is. The spousal visa has SO much less downside risk [it doesn't even have an AOS phase: once it's approved you're a permanent resident] that it's really a no-brainer.

Edited August 19, 2010 by HeatDeath

[Mononoke28 135]

Your lawyer gave you accurate yet irresponsible information. Yes, she can enter the country under the VWP and say she's just visiting and then file for AOS. Yes, her work permit will take about 3-6 months. And yes, her green card will be approved in about 6-9, maybe 12.

Now, with all of that said... the process above is considered fraud. Many people choose this route and are approved without any issues. So it's your choice.

One last thing, if you have a pretty straight forward case, meaning there are no issues pending that you need to take care of before filing, don't get a lawyer for neither case. You can use this site to file for the either the CR1/IR1 visa or the AOS process without hiring help to do so unless you really don't want to deal with it.

Diana

[ValerieA 350]

Just a note to the above - although I am agreeing that entering with intent to immigrate on a visitor visa is fraud, so it's a no-go - the entire AOS process, from filing to green card, is taking from 3 to 5 months lately.