Possible AOS from B2?

[JimVaPhuong 4,863]

Just as on an internet forum, so it is with lawyers - everyone has an opinion.

I can't comment on what the first attorney has in mind, other than to say that SunDrop makes a good point. Some attorneys will promise you the moon, as long as you sign the check.

I was joking when I suggested you ask them to work on contingency. No lawyer would do that with an immigration case. I just thought you should press the guy and see just how confident he really is. If you're paying him by the hour then he's got nothing to lose if you don't succeed, and potentially could make a lot more if you don't, what with motions to reopen, appeals in front of an immigration judge, the Board of Immigration Appeals. Heck, maybe even an appearance in front of a Federal Circuit Appeals Court! Cha Ching!

The second lawyer who told you about the "30 day limit" being part of immigration law is a dinosaur, right? Someone who has been practicing immigration law for a long time, and probably hasn't kept current of changes in the law. There IS no 30 day limit in immigration law, and there never has been. The 30/60/90 day rule is part of the Foreign Affairs Manual, 9 FAM 40.63, and is used by US consulates to determine if fraud exists. There was a presumption for a long time that INS/USCIS used the same rule for adjustment of status. They don't.

Anyway, the theory goes something like this...

If an immigrant marries within 30 days of entry then the immigration officer is supposed to presume preconceived intent, and deny the

AOS

. If the immigrant marries between 30 and 60 days after entry then the immigration officer is not supposed to presume preconceived intent, but is supposed to scrutinize the case for evidence of intent. Between 60 and 90 days and they're only supposed to deny if the evidence of intent is readily available.

Now, the above is actually BS. The Battista case in 1987 put an end to INS/USCIS denying AOS solely for preconceived intent, and should have put a stop to immigration lawyers presuming that INS/USCIS applied a 30/60/90 day rule similar to the one used by Department of State. However, many lawyers are still taught that such a rule exists at USCIS, and that immigration officers still apply it. If it exists at USCIS then it should be written in the Adjudicators Field Manual, but I've never seen it.

The same lawyer also told you that she can't adjust status because she intended to immigrate at some point in her life. Again, total BS. If that were true then everyone who intended to immigrate to the US ever would be effectively barred visiting the US ever.

Jane:

Gee, I think I'll move to the US someday.

John:

Ooops! Sorry, you can't visit the United States ever again because you intend to immigrate someday.

Do you see how silly that sounds? It's not illegal to enter the US as a visitor if you intend, someday, to immigrate here. What IS illegal is to enter the US as a non-immigrant if you have the intention of becoming an immigrant before you leave. That's misuse of a non-immigrant visa. But again - preconceived intent alone is not enough to deny AOS to an immediate relative of a US citizen. Refer this attorney to the Battista case for remedial study.

The third lawyer seems to be the most rational of the three, but I'm biased because he seems to agree with me.

The overwhelming majority of people who adjust from a B2 visa are approved, regardless of how soon after entry they married. They could certainly be asked about their intent at the interview, but it won't be sufficient to deny the AOS by itself. The thing that makes your case different from all those other cases is that your wife was subjected to a lengthy and thorough secondary inspection when she entered. Bob used the analogy of a 25 shot revolver with a single chamber loaded. In your case, CBP could have loaded a lot more chambers during that secondary inspection. It's almost impossible to know what will happen if you pull the trigger now.

[Deputy Purple 1,294]

Why would a Lawyer suggest K-1 or CR-1 if the processing times are similar?

With a CR-1 Visa once your WIFE clears POE in the US she get her Green card in the mail and you don't worry about USCIS for 21 months (file for Removal of Conditions 90 days before 2 years).

With a K-1 Visa after you marry here in the US you will need to file to Adjust her Status and then 21 months later file for Removal of Conditions.

You tell me which case gives the Lawyer more chances to earn fees from you?

Seriously if the K-1 is shorter it's my a month or two (which accounts for the NVC processing) but the upside of not having to AOS after entry more than makes-up for that slight delay.

FWIW, I agree that CBP may have loaded a few chambers on her entry. Without knowing for sure you need to ask yourself if you can handle the consequences if you file AOS in country and it goes horribly wrong. Of course you need to understand what those consequences are: Lifetime entry ban for material misrepresentation without the possibility of a waiver.

[Journeyer 17]

Just as on an internet forum, so it is with lawyers - everyone has an opinion.

I can't comment on what the first attorney has in mind, other than to say that SunDrop makes a good point. Some attorneys will promise you the moon, as long as you sign the check.

I was joking when I suggested you ask them to work on contingency. No lawyer would do that with an immigration case. I just thought you should press the guy and see just how confident he really is. If you're paying him by the hour then he's got nothing to lose if you don't succeed, and potentially could make a lot more if you don't, what with motions to reopen, appeals in front of an immigration judge, the Board of Immigration Appeals. Heck, maybe even an appearance in front of a Federal Circuit Appeals Court! Cha Ching!

The second lawyer who told you about the "30 day limit" being part of immigration law is a dinosaur, right? Someone who has been practicing immigration law for a long time, and probably hasn't kept current of changes in the law. There IS no 30 day limit in immigration law, and there never has been. The 30/60/90 day rule is part of the Foreign Affairs Manual, 9 FAM 40.63, and is used by US consulates to determine if fraud exists. There was a presumption for a long time that INS/USCIS used the same rule for adjustment of status. They don't.

Anyway, the theory goes something like this...

If an immigrant marries within 30 days of entry then the immigration officer is supposed to presume preconceived intent, and deny the

AOS

. If the immigrant marries between 30 and 60 days after entry then the immigration officer is not supposed to presume preconceived intent, but is supposed to scrutinize the case for evidence of intent. Between 60 and 90 days and they're only supposed to deny if the evidence of intent is readily available.

Now, the above is actually BS. The Battista case in 1987 put an end to INS/USCIS denying AOS solely for preconceived intent, and should have put a stop to immigration lawyers presuming that INS/USCIS applied a 30/60/90 day rule similar to the one used by Department of State. However, many lawyers are still taught that such a rule exists at USCIS, and that immigration officers still apply it. If it exists at USCIS then it should be written in the Adjudicators Field Manual, but I've never seen it.

The same lawyer also told you that she can't adjust status because she intended to immigrate at some point in her life. Again, total BS. If that were true then everyone who intended to immigrate to the US ever would be effectively barred visiting the US ever.

Jane:

Gee, I think I'll move to the US someday.

John:

Ooops! Sorry, you can't visit the United States ever again because you intend to immigrate someday.

Do you see how silly that sounds? It's not illegal to enter the US as a visitor if you intend, someday, to immigrate here. What IS illegal is to enter the US as a non-immigrant if you have the intention of becoming an immigrant before you leave. That's misuse of a non-immigrant visa. But again - preconceived intent alone is not enough to deny AOS to an immediate relative of a US citizen. Refer this attorney to the Battista case for remedial study.

The third lawyer seems to be the most rational of the three, but I'm biased because he seems to agree with me.

The overwhelming majority of people who adjust from a B2 visa are approved, regardless of how soon after entry they married. They could certainly be asked about their intent at the interview, but it won't be sufficient to deny the AOS by itself. The thing that makes your case different from all those other cases is that your wife was subjected to a lengthy and thorough secondary inspection when she entered. Bob used the analogy of a 25 shot revolver with a single chamber loaded. In your case, CBP could have loaded a lot more chambers during that secondary inspection. It's almost impossible to know what will happen if you pull the trigger now.

Thanks. I believe that your advice is sound. In retrospect, I wish that we had married when she was here before as we probably could have adjusted status without problem. But of course hindsight is always about 100% good and there is no way to go back and do it again.

Our original intention was for her to come here, for us to get married, and for her to return so we could start the filings to go the CR-1 route. The thing that changed is the surprise one month limitation to her stay. Because of that, and only because of that, we thought about AOS, so that we would not have to be apart for so long. I think what we are looking at now, is going back to plan A and doing the CR-1 even though she has to leave in a couple of weeks. We would really like to do this and find a way for her to stay here a little longer, but I do not see any way that we can do that. I am afraid that an overstay would cause problems. So I think the best we can hope for is that I can visit her sometime in April and that maybe in June or July she could come back here while we are waiting and go back to Brazil in time for her interview, and that maybe I can go there again and return with her after the interview when she gets her status to come back.

[Journeyer 17]

Why would a Lawyer suggest K-1 or CR-1 if the processing times are similar?

With a CR-1 Visa once your WIFE clears POE in the US she get her Green card in the mail and you don't worry about USCIS for 21 months (file for Removal of Conditions 90 days before 2 years).

With a K-1 Visa after you marry here in the US you will need to file to Adjust her Status and then 21 months later file for Removal of Conditions.

You tell me which case gives the Lawyer more chances to earn fees from you?

Seriously if the K-1 is shorter it's my a month or two (which accounts for the NVC processing) but the upside of not having to AOS after entry more than makes-up for that slight delay.

FWIW, I agree that CBP may have loaded a few chambers on her entry. Without knowing for sure you need to ask yourself if you can handle the consequences if you file AOS in country and it goes horribly wrong. Of course you need to understand what those consequences are: Lifetime entry ban for material misrepresentation without the possibility of a waiver.

I agree with you 100%. After doing much research here and other places, I have felt for some time now that the CR-1 path is much better than the K-1.

Basically, what they ask her is if she lives here. Of course she said no, because she owns a home in Brazil, has bank accounts there, income, etc.. That is still her permanent residence. So they told her she is lying, which she is not. They asked her what she does for work, she told them she is retired, which is true. They told her she is lying. Basically, everything they asked her, was the same, YOU LIVE HERE. She did not of course tell them she has a fiancee here. If she would have, they would not have let her enter. So the only thing that I know of that they would have to say was misrepresented, is that she did not tell them that I am her fiancee. They did not ask her about getting married, about working here, they did not make her sign anything or write anything in her passport. The main point of it seemed to be that they wanted to insist that she lives here.

In response to your 2nd question, is it worth taking a chance on getting denied AOS? The answer is easy, NO. Her children and my children are all grown and out on their own. We are now pretty much the center of each others universe, so to speak. We both feel that now we were given a 2nd chance at happiness, and at this stage of life that is too precious to risk for any reason.

[Deputy Purple 1,294]

In response to your 2nd question, is it worth taking a chance on getting denied AOS? The answer is easy, NO. Her children and my children are all grown and out on their own. We are now pretty much the center of each others universe, so to speak. We both feel that now we were given a 2nd chance at happiness, and at this stage of life that is too precious to risk for any reason.

Exactly, I've gotten jumped-on by people on VJ because I will always recommend the safest route. Even if the chance is less than 1% that it will go wrong there is still that chance and like I said in these cases the consequences are pretty severe.

Of course the time apart sucks and there will be nights that it feels like forever and the end will never come but trust me once she lands on that CR-1 the lonely days fade into memory just as quickly as they seemed to devour your life.

In the 8 months our CR-1 took I was only able to be with my wife via the internet & phone. "Oceans apart day after day", yeah we lived that song for a while. She's been here for a year now and it was definitely worth the wait.

[Journeyer 17]

In the 8 months our CR-1 took I was only able to be with my wife via the internet & phone. "Oceans apart day after day", yeah we lived that song for a while. She's been here for a year now and it was definitely worth the wait.

I feel for you man. Before my wife came back this month, we were apart for only 3 and one half months, and it felt like a literal eternity. 8 months seems unimaginable. Our federal government really needs to reform and update this process. It seems draconian and antiquated in this day and age to keep a married couple apart for nearly a year to process these cases. If a private firm operated like that they would be out of business in a week. I am holding out some hope that we can get in a couple of at least short visits while we wait.

[silvana.toma 15]

I was just thinking...if they charge 200 for a consult, they might charge you an arm and a leg for the entire process. And at this point it's probably better if she goes home and applies for CR-1 i think? It's risk free, and it's probably going to cost you the same money-but without the risk of a denial.

You mentioned how scared she is...this process is a stressful one even for people without any issues, i can not even imagine what she feels. So you have to ask yourself is it worth spending a lot of money on lawyers, and having your wife stressing everyday for maybe 6 or more months, while there is still a chance that she can get denied? we all have a chance of geting denied. Getting a green card is not 100% sure.

If you guys love eachother I'm sure you can sacrifice. I was away from my fiancee for a 9 months this year, but if the relationship is strong, nothing can breake it.

It all comes down to if you want to take a chance.

Good luck to you, and let us know what you decide to do.

Have a happy new year!

[Deputy Purple 1,294]

I am holding out some hope that we can get in a couple of at least short visits while we wait.

You visiting her will be no problem.

Her returning within a few months, she might get turned back as they already suspect she's using the B-Visa to live in the US (which I can understand with the recent pattern of frequent long stays). Even with strong ties to Brazil it will only get tougher once she's got paperwork in the system for an immigrant Visa.

[JimVaPhuong 4,863]

You visiting her will be no problem.

Her returning within a few months, she might get turned back as they already suspect she's using the B-Visa to live in the US (which I can understand with the recent pattern of frequent long stays). Even with strong ties to Brazil it will only get tougher once she's got paperwork in the system for an immigrant Visa.

After the grilling she got this time around, the drastically reduced period of authorized stay, and the fact that she's now married to a US citizen, I'd say the chances of her being admitted again with the B2 visa have dropped dramatically.

A holiday in Brazil sounds very nice, though!

[Journeyer 17]

A holiday in Brazil sounds very nice, though!

Or 2...

[Journeyer 17]

Wow, this is all so very stressful. I have one question that I hope someone can answer, as I can only find conflicting facts about it in a google search. If my wife filed for an extension of her B2 before the I-94 date is up and then gets a denial for the extension, does that terminate her multiple entry B2? I am reading posts(not on this site) by people who say that it will, and others who say that is not true. I am pretty much 100% certain now about filing I-130 for her and her returning to Brazil for consular processing of CR-1. But we were hoping she could remain here until April if we file an extension and not getting into trouble if it gets denied. Thanks in advance for anyone who may have knowledge of the extension process and consequences of extension denial.

After the grilling she got this time around, the drastically reduced period of authorized stay, and the fact that she's now married to a US citizen, I'd say the chances of her being admitted again with the B2 visa have dropped dramatically.

A holiday in Brazil sounds very nice, though!

Me too Jim, but we are now wondering if she can get an extension to maybe stay another month or two and hoping that if that got denied that it would not cause us problems with the CR-1 process.

[Boiler 45,516]

As she is unlikely to be coming back on a B2 anyway, seems no harm applying for an extension, keeps her is status whilst they review it.

[Journeyer 17]

As she is unlikely to be coming back on a B2 anyway, seems no harm applying for an extension, keeps her is status whilst they review it.

Hey Boiler, that is what I was just telling my wife. I am not worrying about her being here for 1 or 2 days out of status even if they denied it before she departed and revoked the B2. I am only worried about the CR-1 and how the overstay, no matter how small, in case of denial could affect the CR-1 approval. I seriously doubt they will let her back through POE for at least 6 months on her B2, so the B2 is not important to us now, only the CR-1.

Have to tell you also, actually had a consultation with an attorney today, the guy is an IALA member and seems pretty sharp, he has done lots of AOS. He told us after listening to our story for nearly an hour, that he would if we can, go the AOS route and that we are in much better position to AOS than other clients he has got approval for. Problem is, we can't because the wife has to be back in Brazil in April, and even if we could, I still would not risk it. Reason being that any chance, no matter how small, of a denial is just not acceptable for us. I can't possibly imagine any reason at all that they would deny us in a CR-1 process, so that is what we are going to do. We just want to minimize our time apart.

[Boiler 45,516]

Did the Lawyer mention AP.

[Journeyer 17]

Did the Lawyer mention AP.

Yes he did. That is the first thing that he brought up when advising us to AOS. However, he thought that the time is short for us to AOS and also obtain advance parole and he was very hesitant to assure us that we would get the AP in time for my wife to travel back to Brazil on April 5. She has very serious reasons for needing to be back there by that date(for her, not necessarily for immigration). So anyways, he was very optimistic about our chances for AOS, but not so much for AP.