Will my wife need a pardon?

[JimVaPhuong 4,863]

While there is a technical loop hole for someone who enters on a tourist VISA versus Visa Waiver Country person who cannot adjust and overstays and then does an application for AOS, my point is.. its irresponsible to encourage working the loophole without mentioning the risks and pointing out there will be additional scrutiny for this type of application. First you have to prove you did not enter with the intent to immigrate.. so if you put in a VISA request based on two weeks at Disney World in late August but end up married in Sep/Nov .. as Ricky Ricardo used to say... "Lucy you got some splaining to do"

Couple that with the short duration of the relationship.. culminating in marriage in a few shorts weeks of meeting for the first time and you begin the interview with RED FLAGS flying everywhere.

So, again the point is.. while it can be done, ignoring potential risks is a bad idea IMHO

Meh.

Is it a "loop hole"? Maybe. Some people have certainly used it that way. It amazes me how many immigration attorneys tell people to just get a tourist visa, come to the US, get married, and get a green card. It also amazes me how many people come to this forum and innocently ask how to go about doing this before they've come to the US. Yeah, obviously some people see this as a shortcut and use it that way.

On the other hand, is it legal? Yep, it certainly is.

BTW, they don't have to prove they didn't have preconceived intent. It's the other way around. USCIS has to prove they did have preconceived intent. Even if USCIS can prove it, there is sufficient precedence that USCIS can't deny an AOS solely for preconceived intent, even if they have solid evidence of it. The Adjudicators Field Manual is pretty clear on this. Preconceived intent is an adverse factor, but not enough on it's own to outweigh the positive factor of being an immediate relative of a US citizen. Before they could deny the AOS, they would also need proof the alien lied about their intent to an immigration officer. They could then deny based on the material misrepresentation.

You're right that there is a risk. It's not a huge risk, but it exists. You're also right to warn people of the risk. However, the warning should be based on the facts and not supposition or judgment. Is there anything in their situation that USCIS could use as evidence of preconceived intent? Did they, for example, bring anything in their luggage that would have been required for AOS but not required for a brief visit to the US (copies of birth certificates, divorce decrees, etc.)? Was their luggage inspected by TSA, which means the evidence might have been discovered? Did CBP ask them pointed questions about their intent, or were they referred to secondary inspection where they were interrogated about their intent? These things significantly raise the level of risk. If nothing similar to these occurred, then the risk is relatively small.

After considering the potential risks, if the OP claims that they did not have a preconceived intent to immigrate, then there's no problem advising them to apply for AOS. It's legal, and they have a right to do so.

[silvana.toma 15]

You said earlier your wife came on a tourist VISA but did not intend to stay. I am guessing they will ask you and her about this at the interview.

So if she entered with intent to go back which is the opposite of entering on a tourist VISA with the intent to immigrate (immigration fraud), wouldn't she have to give notice at her job and her apartment and pack her things and settle her affairs? How does she plan to do that if your wife overstays to stick around and adjust status?

did they say that she has a job back home, did they say that she has a home that needs to take care of?? maybe i missed it but i dont so. SO, some people have different situation than others, not everybody was working or had a home when they came here. just saying...

[silvana.toma 15]

My wife and I are getting ready to mail in the I-130 and the I-485...she is here on a tourist visa that will expire on Dec. 7th...I have been told that once we file these papers that my wife's expiration date does not matter we will just be waiting on the response to the papers...but I have a question...do we need to file a pardon also since she will be over staying her tourist visa or will the I-130 and the I-485 be all we need in order to avoid her expiration date?

MAN ...i think people that came in us with K1 should stick to their forums.

Now...to answer your questions...i would submit the papers before november 23 for 2 reasons:

1. the forms go up in price by 10%

2. It would be best if you apply for AOS before her visa expires(dec7th),i know plenty of people did their AOS after their visa expired, but you are here now, so might as well not complicate things(because it will not look good with an expired I-94). So if you file AOS before the 7th, she will be allowed to stay in us legally(even if her I-94 expired) untill the process is over and you will have an answer(yes or no-hopefully yes!!) for your petition. SO what you heard was right, it's ok, she will not be illegal after her I-94 expires.

[treyfort 4]

When she applied for the VISA she had to prove she had a residence to return to, and a job and ties to her home country, and round trip ticket.

So, what happened to her job and her residence in her country?

Her residence was she had an apartment that her parents let her live in, and she worked for her mom in her mom's grocery store

[treyfort 4]

Her residence was she had an apartment that her parents let her live in, and she worked for her mom in her mom's grocery store

Oh and another thing that I think will help with the fact that she did not have the intent to stay is because she will need to go back to Honduras to go to court over custody battle against her ex for her 2 youngest daughter...he has already gone to the courthouse and put a demand on this issue.

[Canadian in GA 34]

I sent in my papers and they got it 2 days after my passport stamp expired, and there was no issue. i was a little nervous about it, but they never asked about it, i just got approved for my green card. but best thing to do is do it at least 30 days before it expires- thats their request- and then you know they have recieved it before your date expires.

[Used to be broken 147]

Oh and another thing that I think will help with the fact that she did not have the intent to stay is because she will need to go back to Honduras to go to court over custody battle against her ex for her 2 youngest daughter...he has already gone to the courthouse and put a demand on this issue.

Well here is something to check with attorney on, because during the interim period, after the overstay and before the approval.. a bar could be

imposed. That is why I always say.. check with attorney

[Used to be broken 147]

did they say that she has a job back home, did they say that she has a home that needs to take care of?? maybe i missed it but i dont so. SO, some people have different situation than others, not everybody was working or had a home when they came here. just saying...

I know this might sound but if you read earlier in the OP's post, he said his wife came on a tourist VISA.

In order to get a tourist VISA you have to fill out a paper which includes biographical information regarding your job, your residence and your ties to your home country. The Consular officer works off the presumption that all visitors requesting VISA's have the INTENT to immigrate and in order to secure a Tourist VISA you have to overcome this presumption with the application for VISA and in many cases a personal interview with a consular official who verifies the travel plans and asks if and when you intend to return to your home country. You often have to show assets sufficient to sustain yourself during your stay in the US, and submit a travel itinerary showing when you will return home. So when there is a conflict between what you told the consular officer and what your actions are that is where a possible misrep charge comes in.

It would be a rare situation where a consular officer would approve a tourist VISA when the applicant was an adult with no job, assets or ties to the home country.

Maybe this link will help you understand where I am coming from;

Nonimmigrant Intent

When issuing temporary visas, every U.S. consular officer begins by making one assumption about the visa applicant: that he or she intends to come to the U.S. to stay. This presumption becomes a problem when someone is applying for a visa that requires the applicant to have "non-immigrant intent" - or the intention to leave the U.S. when they finish their studies, their reserch, etc. Certain visas - such as the F-1 student and the J-1 exchange visitor visa - cannot be issued if the consular officer believes the applicant will stay in the U.S.

Immigrant intent - the intention to stay in the U.S. - is the number one reason for denials of temporary visas and is often refered to as 214(b) by immigration practitioners and consular officer. 214(b) referes to the section of the Immigration and Nationality Act that describes immigrant intent as a reason for visa denials.

[Used to be broken 147]

You're right that there is a risk. It's not a huge risk, but it exists. You're also right to warn people of the risk. However, the warning should be based on the facts and not supposition or judgment.

Is there anything in their situation that USCIS could use as evidence of preconceived intent?

After considering the potential risks, if the OP claims that they did not have a preconceived intent to immigrate, then there's no problem advising them to apply for AOS. It's legal, and they have a right to do so.

I agree 100%, and since most posts of this sort are short sweet and do not give much detail regarding the circumstances of the consular interview getting the VISA or the CBP interaction at POE, or any attempts to extend VISA or information regarding the applicants PAST Immigration history in the US... or their immediate travel plans, ect. there is not sufficient information to "assess the risk" because each individual case is different.

And yes while it is legal and you are correct that the AOS applicants generally don't have issues, I also point out that it is fairly common for IO and Consular officers to make mistakes adjudicating applications. When this happens the appeals process is long and expensive for the applicant and oh did I mention stressful? I can think of two cases currently in progress who are posting on the board where the law is CLEAR yet the consular officer forced the applicants to apply for waivers. I have yet to hear of a case where the government has reimbursed the petitioner for legal expenses, although I suspect you will come back and post one

Edited November 9, 2010 by brokenfamily