AOS on a B1 B2

[cactus john 1]

I am married to a Thai national for the last 3+ years and have resided with her in Thailand for that period of time on a Thai retirement visa. I came back to the USA to seek employment in September and she stayed back in Thailand. She has a B1/B2 Visa which is good until 2015.

She came to visit for the holidays on 02 December via Seattle and was questioned by CBP and informed CBP that she was visiting relatives ( she also has cousins here in AZ and in TX )and her husband ( me ) The CBP officer telephoned me and asked if she was comng to visit, to which I replied in the affirmative. He allowed her 6 months entry ( which will expire on the last day of May 2011. )

I have now found employment ( as of 04 January 2011 ) and would like to see if we may be able to get a change of status for her.

My question is, is this going to be considered FRAUD? It was not our purpose to "dodge" the normal immigration system, never our intention.

Can we file the necessary paperwork while she is still within the United States and is she allowed to remain while the paperwork is in process?

I informed CBP officer while on the phone that I came back to find a job and that we still reside in Thailand, wife has a return ticket on the date he allowed her to stay until, but would possibly change and file the I-130 while in Thailand. Not an issue with the officer at all. Things have changed and I would like her to stay.

Sorry if I'm rambling..

[Harpa Timsah 13,258]

We can't guarantee the outcome, but it sounds to me like you had a normal change of circumstance. You were honest at POE and since then things have changed. Your wife was not trying to immigrate when she entered on her B-2 visa. No fraud there.

And, btw, I didn't mean to elicit an apology in the other thread! Sorry if I came off mean. I was just trying to say a separate thread like this might get more action!

I linked you to the guide in the other thread, and she MUST stay in the US until she gets her temporary travel document, called Advance Parole (form I-131) OR has the Greencard itself. The whole process is taking about 3-4 months lately.

Good luck with AOS!

Edited December 30, 2010 by Harpa Timsah

[daboyz 36]

I am married to a Thai national for the last 3+ years and have resided with her in Thailand for that period of time on a Thai retirement visa. I came back to the USA to seek employment in September and she stayed back in Thailand. She has a B1/B2 Visa which is good until 2015.

She came to visit for the holidays on 02 December via Seattle and was questioned by CBP and informed CBP that she was visiting relatives ( she also has cousins here in AZ and in TX )and her husband ( me ) The CBP officer telephoned me and asked if she was comng to visit, to which I replied in the affirmative. He allowed her 6 months entry ( which will expire on the last day of May 2011. )

I have now found employment ( as of 04 January 2011 ) and would like to see if we may be able to get a change of status for her.

My question is, is this going to be considered FRAUD? It was not our purpose to "dodge" the normal immigration system, never our intention.

Can we file the necessary paperwork while she is still within the United States and is she allowed to remain while the paperwork is in process?

I informed CBP officer while on the phone that I came back to find a job and that we still reside in Thailand, wife has a return ticket on the date he allowed her to stay until, but would possibly change and file the I-130 while in Thailand. Not an issue with the officer at all. Things have changed and I would like her to stay.

Sorry if I'm rambling..

You're going to catch hell around here asking about that. It's all about INTENT. People will seeing it as "jumping the line" Did she come here on the B1 with the intent of staying and adjusting status?

I'll go ahead and take my beating. You can adjust status and get a green card in this situation. That said, if they think she came here on the B1 to immigrate, that constitutes fraud. It's a slippery slope.

The "right" way to do it is file DCF in Thailand since you have resided there for more than 6 months. The time will be about the same, maybe even a little quicker.

Edited December 31, 2010 by daboyz

[cactus john 1]

You're going to catch hell around here asking about that. It's all about INTENT. People will seeing it as "jumping the line" Did she come here on the B1 with the intent of staying and adjusting status?

I'll go ahead and take my beating. You can adjust status and get a green card in this situation. That said, if they think she came here on the B1 to immigrate, that constitutes fraud. It's a slippery slope.

The "right" way to do it is file DCF in Thailand since you have resided there for more than 6 months. The time will be about the same, maybe even a little quicker.

No, she did not.

How do you convince them that the situation changed & that there IS NO intent to defraud, it just is playing out this way? ( I am a retired law enforcement officer who has worked alongside ICE and have seen first hand thier Nazi techniques..)

[rsn 135]

No, she did not.

How do you convince them that the situation changed & that there IS NO intent to defraud, it just is playing out this way? ( I am a retired law enforcement officer who has worked alongside ICE and have seen first hand thier Nazi techniques..)

Actually, the responsibility is theirs to prove your fiancée had intent to immigrate. As long as you or your fiancée did not lie to the CBP officer and as long as you did not lie on any related visa apps or misrepresent yourself in any other way, she will be fine. The USCIS adjudicator's manual states that intent to immigrate is not enough to deny AOS. Material misrepresentation, however, is.

[rsn 135]

Poster is asking about adjustment of status for his fiancee, who is here on a tourist visa. Moving from Tourist Visas to Adjustment of Status from Work, Student, & Tourist Visas

[daboyz 36]

No, she did not.

How do you convince them that the situation changed & that there IS NO intent to defraud, it just is playing out this way? ( I am a retired law enforcement officer who has worked alongside ICE and have seen first hand thier Nazi techniques..)

I know a couple here. She came over on a tourist visa. They were gonna marry right when she got here and then AOS. I advised against that. Told them to wait at least a month. They did that, filed AOS and were fine. Like I said it's kinda jumping the line, but hey live and let live. If USCIS wasn't so f*cked up, people wouldn't need to do that.

[ATPEACE 43]

He will be AOS'ing for his wife, not financee. Now look at it this way, he was already here putting things in place for the wife's immigration. They should really do DCF.

[rsn 135]

He will be AOS'ing for his wife, not financee. Now look at it this way, he was already here putting things in place for the wife's immigration. They should really do DCF.

My mistake, they are married. As long as there is not misrepresentation involved, there is no issue with adjusting status at this point.

[ATPEACE 43]

My mistake, they are married. As long as there is not misrepresentation involved, there is no issue with adjusting status at this point.

Chose the route that will allow you to sleep peaceful at night.

[JimVaPhuong 4,863]

The main question to ask yourself in cases like these is what USCIS likely knows or suspects, and how it could be used against you.

You've already said that she didn't intend to adjust status when she entered. You're clear from a moral perspective. There's no willful violation of immigration law. She can apply to adjust status.

The problem is that neither CBP nor USCIS can read people's minds. They don't know what her actual intentions were when she entered. They have to make a decision based on any evidence they might have. Sometimes the evidence is blatant, like the alien is carrying a job offer letter from a prospective employer in the US, or the alien has entered into a two year lease on an apartment in the US. Sometimes it's not so obvious, such as the alien is carrying documents that would be needed for adjustment of status but not needed for simply visiting the US. USCIS can presume preconceived intent if they have evidence that supports this presumption.

USCIS won't deny AOS for preconceived intent alone - not when then alien is an immediate relative of a US citizen. In addition to the evidence of intent, they would need a statement from the alien to an immigration officer that they did NOT intend to adjust status when they entered. Combined with evidence of preconceived intent, the statement would be considered a material misrepresentation. It's a misrepresentation because they would presume that the evidence represents the truth, and the statement contradicts that truth. It's material because the "truth" would have resulted in a different decision by the immigration officer - they would not have allowed the alien to enter the US.

So the questions you've got to ask yourself are what evidence might they have that there was preconceived intent, and did the alien make any statement to contradict that evidence? If you feel comfortable that there is no evidence they might have and/or she didn't make any statements regarding her intentions then you should be fine.

For what it's worth, the overwhelming majority of people who apply for AOS after entering with a B2 visa are approved.

[cactus john 1]

He will be AOS'ing for his wife, not financee. Now look at it this way, he was already here putting things in place for the wife's immigration. They should really do DCF.

Not really...

I came here to visit my grown children/grandchildren, which I do every year. The wife and I had discussed the possibility of getting a job ( me ) paying off some bills, which is hard to do when your on a fixed retirement income, maybe working for 6 months to a year and then return home to Thailand, but the intented purpose of my return was a visit.

I had planned to return on 07 December and had a airline ticket for same.

Daughter was going out of town ( who I was staying with ) and needed someone to watch the house. I volunteered, changed my plane ticket back to Bangkok and informed the spouse I would be here for a few months and asked her to come and visit for the holidays and we would then return together.

She purchased her ticket not long after.

She arrived on 02 December and we had planned on returning within 6 months or however long CBP would allow her to stay ( 90 days or 180 days ) We planned on 6 mos since on her last 2 visits, this is what she was given.

This is what I told the CBP Officer on the phone while she was being interviewed at SEATAC. Truth, nothing but the truth..so help me.

After she arrived I was contacted by a former fellow cop partner, who wanted to know if I wanted to work for him as a job opportunity had arrived. ( private sector job )

I informed him I would. ( still only planning to stay only as long as it takes to get some small bills taken care of, 6 mos to a year.)

I understand my previous post said I was job hunting in September, which is partialy true, but not completely what the purpose of returning here was about. I did not want to leave my home and was only half assing on looking for some employment..I love being retired!

Now that I am all freaked out that if I do file a AOS, she will be arrested, deported and not permitted to return, next thing I was thinking of was just to file to extend her stay.

I do appreciate all the info so far and I'm learning allot.

สวัสดีปีใหม่ - Happy New Year

[Mountain Climber 186]

If you plan to still reside in Thailand after 6 months to one year here, why would you spend over $1,000 for AOS for your wife? In addition, if you live in Thailand more than here, I believe USCIS would consider your wife to have abandoned her residency here which could result in her being denied entry if you came back together to visit.

[Mountain Climber 186]

If you plan to still reside in Thailand after 6 months to one year here, why would you spend over $1,000 for AOS for your wife? I believe AOS is taking 4 to 6 months. In addition, if your wife got her green card, but you plan to live in Thailand more than here, I believe USCIS would consider your wife to have abandoned her residency here which could result in her being denied entry if you came back together to visit.

Edited January 2, 2011 by Mountain Climber

[cactus john 1]

If you plan to still reside in Thailand after 6 months to one year here, why would you spend over $1,000 for AOS for your wife? I believe AOS is taking 4 to 6 months. In addition, if your wife got her green card, but you plan to live in Thailand more than here, I believe USCIS would consider your wife to have abandoned her residency here which could result in her being denied entry if you came back together to visit.

I understand..

One of the things I discussed with the CBP officer on the phone. He was asking the same thing and said the same as you are.

Reason is, if we did decide to be here longer than 1 year then we are good to go.