USCIS scare, AOS approved and Divorce pending

[am1996 0]

How nonsensical is the question "Have you been inspected by a US Immigration Officer?" I see that as a clear, concise and simple question. What's nonsensical about it?

I think that it is quite reasonable to assume that you must only answer that question in the affirmative if you encountered problems crossing the border, i.e., if you were subjected to secondary screening etc... In other words, I think that it is reasonable to assume that answering that question in the affirmative would cause USCIS to take a much closer and harder look at you. The OP in the thread in question was wondering the same thing.

In my fiance's question, she has always been just "waved through" the border without any questions whatsoever (and in many cases without even showing a passport), so it was not immediately obvious to us that her answer to it must be affirmative, or USCIS would be required to reject the I-485.

Edited August 24, 2006 by am1996

[diadromous mermaid 36]

Another excellent example of helpful statutory references is Advance Parole (I've posted it in a couple of threads). Once you know how USCIS makes decisions about it (which is based on the way it was instructed to do so by Congress, which gave USCIS virtually no discretion), you will know how to answer certain questions. For instance, if the reasons that you want AP is because you want to "go on an African safari" and to "visit elderly parents," providing the second answer gives you a much better chance of qualifying for AP than the first. If you just ask for people's practical experiences without reviewing the statute, you'll get answers that essentially say that "any answer will suffice." Even if that may be true in many cases, a second answer gives you a much higher likelihood of approval than the first.

I certainly can't attest to knowing a vast number of cases, of course, but in all the years associated with the immigration process, I don't recall one case of AP being denied. Some emergency cases, yes, but if applied for in advance, not. So, regardless of how little discretion Congress gave to USCIS and the "family need" ranking above purely recreational requests, USCIS has created discretion to reinterpret COngress' intention, it would appear!

[am1996 0]

I certainly can't attest to knowing a vast number of cases, of course, but in all the years associated with the immigration process, I don't recall one case of AP being denied. Some emergency cases, yes, but if applied for in advance, not. So, regardless of how little discretion Congress gave to USCIS and the "family need" ranking above purely recreational requests, USCIS has created discretion to reinterpret COngress' intention, it would appear!

Sure, and that's wonderful to know. If an AP applicant is, however, unlucky enough to run across a USCIS adjudicator who just finished reading that statute for whatever reason and decides to deny the application, you wouldn't be a happy camper. Likewise, the fact that USCIS has in the past been quite lenient with AP applications is certainly no guarantee that it will continue to do so in the future.

If you know what the AP statute says and can provide an honest answer that clearly satisfies its requirements, why on god's green earth would you not do it?

Edited August 24, 2006 by am1996

[Jenn! 918]

I think it's great that am1996 can expose us to another side of things that we may not be able to access without legal experience. If you disagree with his conclusions, so be it. I havent gotten the impression that he's trying to condescend, although that's how some have taken it. Maybe I've missed something....

[diadromous mermaid 36]

I certainly can't attest to knowing a vast number of cases, of course, but in all the years associated with the immigration process, I don't recall one case of AP being denied. Some emergency cases, yes, but if applied for in advance, not. So, regardless of how little discretion Congress gave to USCIS and the "family need" ranking above purely recreational requests, USCIS has created discretion to reinterpret COngress' intention, it would appear!

Sure, and that's wonderful to know. If an AP applicant is, however, unlucky enough to run across a USCIS adjudicator who just finished reading that statute for whatever reason and decides to deny the application, you wouldn't be a happy camper. Likewise, the fact that USCIS has in the past been quite lenient with AP applications is certainly no guarantee that it will continue to do so in the future.

If you know what the AP statute says and can provide an honest answer that clearly satisfies its requirements, why on god's green earth would you not do it?

I'm not questioning the statute, in fact, I'm commenting on the fact that the decision-makers, that is, the day-to-day decision makers (the AOs), may not be as familiar with the statutory language as they should be or have more discretion than Congress initially intended by virtue of the law. AP is a clear case in point. The vast majority of AP cases are approved for recreational purposes. Does that suggest that AOs are not adjudicating with strict interpretation of the INA in mind? I'd say that's probably true. Which brings me to the point that often decisions are made by AOs that will fall when confronted with statutory language as a legal argument. However, as I suggested earlier, these postures only manifest themselves before the IJ.

With reference to the OP's original question, he was confronted by the AO in the WV office. And, yes, answering only the questions posed is critical, however, misrepresentation comes into play when the AOs question is answered in such a fashion that a natural line of questioning is shut down by an answer given. In this case, the OP declared he was "married". Technically, until a final divorce decree is offered, I suppose in many arenas that is true. The question becomes, did his answer impede the natural flow of the questioning such that the AO would not/could not ascertain as to the viability of his marriage? I can't provide the citation that I stumbled across before, but it seems that I recall USCIS' position on marriage is that it is still viable until legal separation or court process has been initiated. I could be wrong, but this I believe is what I recall. These are points that should be brought before a competent immigration counsel.

How nonsensical is the question "Have you been inspected by a US Immigration Officer?" I see that as a clear, concise and simple question. What's nonsensical about it?

I think that it is quite reasonable to assume that you must only answer that question in the affirmative if you encountered problems crossing the border, i.e., if you were subjected to secondary screening etc... In other words, I think that it is reasonable to assume that answering that question in the affirmative would cause USCIS to take a much closer and harder look at you. The OP in the thread in question was wondering the same thing.

In my fiance's question, she has always been just "waved through" the border without any questions whatsoever (and in many cases without even showing a passport), so it was not immediately obvious to us that her answer to it must be affirmative, or USCIS would be required to reject the I-485.

Applying your subjective interpretation of the term "inspected" I can see your point, but in terms of immigration "inspected" at a POE or border crossing point is a clear definition and involves processing, albeit at some points that may come as a wave, or be relatively unofficial. Unarguably, a response in the negative would indicate that an alien entered the country without being processed at a POE or border point. In other words, sneaking across the border.

[am1996 0]

I'm not questioning the statute, in fact, I'm commenting on the fact that the decision-makers, that is, the day-to-day decision makers (the AOs), may not be as familiar with the statutory language as they should be or have more discretion than Congress initially intended by virtue of the law. AP is a clear case in point. The vast majority of AP cases are approved for recreational purposes. Does that suggest that AOs are not adjudicating with strict interpretation of the INA in mind? I'd say that's probably true. Which brings me to the point that often decisions are made by AOs that will fall when confronted with statutory language as a legal argument. However, as I suggested earlier, these postures only manifest themselves before the IJ.

To the contrary, do you think that you would be more likely to have your AP petition denied if you answered it truthfully and as required by the statute or if you just answered "I want to go on an African safari"? Come on, are we really arguing about this?

With reference to the OP's original question, he was confronted by the AO in the WV office. And, yes, answering only the questions posed is critical, however, misrepresentation comes into play when the AOs question is answered in such a fashion that a natural line of questioning is shut down by an answer given. In this case, the OP declared he was "married". Technically, until a final divorce decree is offered, I suppose in many arenas that is true. The question becomes, did his answer impede the natural flow of the questioning such that the AO would not/could not ascertain as to the viability of his marriage? I can't provide the citation that I stumbled across before, but it seems that I recall USCIS' position on marriage is that it is still viable until legal separation or court process has been initiated. I could be wrong, but this I believe is what I recall. These are points that should be brought before a competent immigration counsel.

I certainly find your analysis to be quite compelling (although I can easily construct, what I believe would amount to, an equally compelling argument on the other side) and would not be at all surprised if that analysis applies in the OP's situation. Consequently, I certainly join you in urging the OP to consult a qualified immigration lawyer. Edited August 24, 2006 by am1996

[sukimi 0]

Isn't it a big no-no to identify yourself as a lawyer and give legal advice on the same messageboard?

[am1996 0]

Isn't it a big no-no to identify yourself as a lawyer and give legal advice on the same messageboard?

It is just as dangerous to provide a legal or for that matter ANY type of advice if you are a non-lawyer. Identifying yourself as a lawyer (or, for that matter, a former CBP officer or any other "knowledgeable" person) makes it more likely that people will attempt to rely on it without checking and confirming its accuracy, which is one of the many reasons that I continue to explain that I am not an immigration lawyer, that my observations are cursory and that my research is very far from complete and should not, therefore, be blindly relied upon. Further, I've already mentioned that "am1996" is not a person but is a screen name -- both I and my fiance (a med student) post under it. Consequently, I strongly urge all the readers to double and triple check all the information found in my posts (as well as in other people's post on this or any other forum). By the way, people on this board who come across as knowledgeable or as experts face the same if not greater perils than I do.

As for the "legal" nature of my advice, I have specifically mentioned in practically all of my posts on this board that although I am a lawyer, I for many different reasons cannot and do not purport to provide any legal advice here. Lawyers are certainly not prohibited from reviewing message boards and posting their "human" observations and experiences. If and when I come across cases or statutes that I believe apply in a situation, I provide citations to them. It is then up to the readers to review all the citations and determine what course of action to take, if any, or to ask follow up questions.

Edited August 24, 2006 by am1996

[rebeccajo 14]

...... Since divorced is not finalized, I think i was right in saying we're "still married"......

Your opinion. Not theirs. Since they make the rules and not you, that's a deadly game. Very dumb.

OK. How smart is it to sit and type "I think i was right in saying we're "still married". The OP must be questioning the wisdom of his decision to take that stance or else he would not be coming here asking what we think.

For those who want to split hairs, my comment (dumb) was regarding his decision to take that stance when he is NOT the one who can make a decision that may ultimately affect his life in the US. NOT whether or not the OP was smart or dumb - but his decision. His decision to say "I think I was right".

Perhaps I was rude in saying so. If so then I offer an apology to all offended.

am1996, I'm all for second starts and chances, ok?

Sure there's room for argument in immigration matters. But it belongs in the courtroom, (as mermaid said) and not here. In a self help forum such as this one we are best served sticking to black and white.

And I think you would do well to admit that despite your credentials, you would be just as lost in a courtroom setting as I would. If you graduated 'smartly' in your class, you should know full well that whatever area you practice in makes you woefully incapable in the areas in which you don't. Or if not incapable, then at least dangerous - as in the old adage "I know just enough to be dangerous".

I'm sorry if you think my post was rude. But I believe that what the OP did was - well - plain dumb. Especially when his immigration status hangs upon the answer to the question put to him. There is nothing wrong with telling someone what they did was less than smart. My divorce lawyer told me I did dumb stuff. Do you speak to your clients with something less than candor? Perhaps it's just where I am from. Around here we call it being 'straight up'.

What I said might not help the OP. But it's straight up. It's the heart of his problem and the reason he came here with a question. What more does he need to know? How to keep evading the answer?

I hate to continue belaboring this point but you still don't seem to understand what I am saying. There are plenty of circumstances out there when your "complete candor" as you call it (I call it "volunteering information when you are not required to do so") is the worst possible thing you can do -- this is true in every legal, practical and every other sense out there. For instance, if you are ever audited by the IRS, you are generally well advised to only respond to the questions asked without volunteering ANYTHING. If you give them all the paperwork you have for everything out there, then you are asking for trouble. If you are ever pulled over and asked whether you know why the police officer pulled you over, the right answer in almost every situation is NO. If you tell him that it is because you just ran a red light but he pulled you over for speeding, you will get two tickets.

Likewise, it is not at all clear here that the OP was required to volunteer information to USCIS. If he was not and the law clearly states that USCIS cannot hold it against him, then as a legal, practical and every other matter out there the answer that the OP has provided was the right one. Are we now on the same page?

I tried to offer you an olive branch. Instead you continue to bang your gong.

I stand by my opinion that your JD does not give you the expertise nor the credibility to come on here and spout your opinion on immigration law. All it shows me is that you learned how to research. A good paralegal can do the same.

There is a little phrase that you may not yet have come upon in your self-help crash course in immigration law. It's called 'totality of circumstance'. Adjudicators have been granted the latitude to use it. CBP officers have been granted the latitude to use it. It's in their handbooks - not the law as hammered out in the legislative process and stamped by the Senate and President.

You may have a JD but you have much to learn.

[sjoefl01 1]

If I was the OP I would have done exactly the same thing. There was no perjury involved. The question was answered honestly. Had they followed to ask if the couple was living together or if there was a divorce pending then there would be a legal problem. You are not required to volunteer information to the government.

Lets say that the OP would have felt compelled to spill his guts and tell them the marriage was on the rocks. We all know the consequences would have been no green card and orders to go home. Let's also say that the USCIS has discovered that there are problems in the marriage. I am sure the consequences will be the same.

Why in the world would the OP want to inform the USCIS that the marriage was broken when they did not ask?

Pick another hypothetical situation. This time let's make it your situation:

Let's say that on the night before your interview you had found your spouse in bed with your best friend. Would you be required to inform the USCIS of this at the interview?

I really don't think you are required to answer questions that have never been asked.

On the downside I do think the OP is in trouble. I think the USCIS has gotten wind that the marriage is over. I don't know what a lawyer can do to help. I don't think the lawyer can change immigration law.

[lovelypanda 0]

am1996,

I am sorry if I offend you, but quating the immigration laws and statutes does not help me at all.

I know we can google and find what the laws say, but please remember,

not all users' native language is English and some cannot understand the laws like you do.

My native language is Japanese, and it is hard for me to understand the laws and statutes.

I believe it is much easier for you, and I think that is great.

But then I want you to break it down to the words that some users, like me, can understand.

Even though I can understand what you are saying here, it gives me headache, too.

I am not sure if this is only me, but it is much easier to understand "hey, what you did was not smart"

than "you know what? the laws say this and that, so according to the laws, I think that was fine"

It's just my opinion, so please ignore if you want.

lovelypanda

[rebeccajo 14]

Pick another hypothetical situation. This time let's make it your situation:

Let's say that on the night before your interview you had found your spouse in bed with your best friend. Would you be required to inform the USCIS of this at the interview?

I really don't think you are required to answer questions that have never been asked.

Hypothetically I could say that I damn sure wouldn't be there at the interview to have that question asked of me!

[Kez/JWolf 6]

Nobody like to have the laws and statutes thrown at them.... most of us dont understand what it is trying to tell us.... I know you am1996 find it helpful to go and look at and understand.... you have a legal mind but please remember that not everybody does....

Its like being back at school... you remember the smart kid???? the one who when asked a question took half the leason explaining the answer... well he understood the reasoning and wanted to show he understood... the fact it totally pissed off the rest of the class never entered his smart head....

of course all of this is just my opinion as I have no laws to back it up....

Kezzie

[john_and_marlene 162]

How nonsensical is the question "Have you been inspected by a US Immigration Officer?" I see that as a clear, concise and simple question. What's nonsensical about it?

I think that it is quite reasonable to assume that you must only answer that question in the affirmative if you encountered problems crossing the border, i.e., if you were subjected to secondary screening etc... In other words, I think that it is reasonable to assume that answering that question in the affirmative would cause USCIS to take a much closer and harder look at you. The OP in the thread in question was wondering the same thing.

In my fiance's question, she has always been just "waved through" the border without any questions whatsoever (and in many cases without even showing a passport), so it was not immediately obvious to us that her answer to it must be affirmative, or USCIS would be required to reject the I-485.

This clearly demonstrates your lack of understanding of this subject area. I guess reading the statutes failed you on this topic.

[Kez/JWolf 6]

How nonsensical is the question "Have you been inspected by a US Immigration Officer?" I see that as a clear, concise and simple question. What's nonsensical about it?

I think that it is quite reasonable to assume that you must only answer that question in the affirmative if you encountered problems crossing the border, i.e., if you were subjected to secondary screening etc... In other words, I think that it is reasonable to assume that answering that question in the affirmative would cause USCIS to take a much closer and harder look at you. The OP in the thread in question was wondering the same thing.

In my fiance's question, she has always been just "waved through" the border without any questions whatsoever (and in many cases without even showing a passport), so it was not immediately obvious to us that her answer to it must be affirmative, or USCIS would be required to reject the I-485.

This clearly demonstrates your lack of understanding of this subject area. I guess reading the statutes failed you on this topic.

My understanding of that question was... when I arrived at the POE I had my passport inspected so therfore I had been inspected so I answered yes...

Kezzie