Parents AOS while in the US

[milimelo 4,541]

Moving to AOS from tourist, work, student visas as parents didn't come on family based visa.

[Harsh_77 718]

They even have the original return ticket they purchased to go back to India. Can that be considered intent to return? They had their birth certificates with them, they carry important documents like bank, house documents etc with them everywhere they travel (for emergency purposes).

They have been making frequent trips since my son was born here in the US. He is their ONLY grand child and we want them to be a big part of his life.

No the return ticket itself would not be considered as intent to return. That is not a sufficient enough as evidence.

Are you sure they were not asked anything about their frequent visits? Your firt post says they were questioned in regards to their frequent trips back and forth.

Honetly I don't think officer at POE would question much if they were bringing back their grandson(USC) back home to his parents. They might question mmore if they were leaving US with their grandson without parents.

AOS on tourist visa is never a good idea, it brings lot of scrutiny and questions.

[Harsh_77 718]

Please post helpful comments only. I don't really need random thoughts on my parents lifestyle--that'd be a different post for the future.

Dude - if you dont like wht ppl post on here pls refrain from asking advice on here, just use a lawyer.

What the guy posted are valid question, Officer at USCIS are going to question who brings all the documents that are required for AOS on a vaccation?

When your parents enterd on tourist visa, as part of the visa it is implied that they have no intent to immigrate to US and after entering they file for AOS, means they had intention to immigrate and if the USCIS can show that, then it would be considered as mis-representation, which could be pain.

[need_help_now 0]

Thanks Jim, your reply is very helpful. The POE officer just commented that they have been making trips back and forth--that's all. My parents said both their kids are here, so they have no choice. The officer was mostly just concerned that they were traveling with my son (without any letter from my husband or me permitting it--we didn't think it needed to be so formal, they're his grandparents after all). He stayed with my parents for about 3 months in India without us (his parents). So the officer at POE wanted proof that we approved his stay abroad.

Plus my dad had a part time consulting job in India that he lost as soon as he came here (downsizing--eliminated the position). The traumatic experience at the POE and this made us consider getting their greencards. They are also the sole caretakers of son while my husband and I go to school and work and we want to keep it that way--he loves them!

[Casprd 167]

That still leaves the question of did they bring the necessary documents to AOS. It is a double edged sword because if they didn't then someone back home will have to get everything for them and send it over which may or may not be poossible. If they did, then the question would be why did they. The original questions were

What recourse do we have? Should we send them back to India and reapply? We are worried about jeopardizing their existing tourist visa.

Everyone has given similar responses that amount to yes you should have them return home and start the process over. You may not like that response but be that as it may, that is the correct thing to do and it is the answer to your question. If you want to continue down the AOS path, that is your choice, but most will understandably see this as trying to shortcut the system. It is not normal to AOS from a tourist visa even for marriage. So I think your best option is to consult with an immigration attorney.

[need_help_now 0]

Thanks Casprd!We are working with the attorney, who filed this on our behalf.

[ER Team :) 5]

well, maybe I will be able to help out.

I came to U.S some time ago on a tourist visa to visit my sister. while I was here I met my (now Fiance). I came just to stay for a while but while I was here I realized it will be harder and harder to leave as the relationship with my (now) fiance started to become serious. I was looking at options. My sister filed concurently I-130 and I-485 on my behalf. You need a base for your I-485 - tourist visa is not qualified as a base for I-485.

What happened is that the package I sent was not even processed...

At the USCIS they first go through all the paperwork and either accept and process, then deny or approve. Or they reject the paperwork without processing.

My I-130 and I-485 package was rejected, stating that cannot be processed since the priority date wasn't current.

the paperwork was returned to me ( all of it).

I left the U.S.

Hope it helps.... After the paperwork was rejected I was dealing with a lawyer, he said there's no chance to adjust the staus from a tourist visa....you might file I-130 and I-485 conccurently but only if the priority date is current ( I did not ever got the whole idea for the priority dates and what does that mean...)

Thanks Casprd!We are working with the attorney, who filed this on our behalf.

Did you have to fill out I-130 concurrently?

Did they cash the check already?

[katgrl 14]

ER Team, your packet was rejected because there is no visa immediately available for a sibling petition. So you cannot file the I-130 and adjustment of status (I-485) concurrently. There is however a visa immediately available for parents of USC, which is the case of the OP. Different circumstances.

[quote name=ER Team ' timestamp='1304447638' post='4643812]

well, maybe I will be able to help out.

I came to U.S some time ago on a tourist visa to visit my sister. while I was here I met my (now Fiance). I came just to stay for a while but while I was here I realized it will be harder and harder to leave as the relationship with my (now) fiance started to become serious. I was looking at options. My sister filed concurently I-130 and I-485 on my behalf. You need a base for your I-485 - tourist visa is not qualified as a base for I-485.

What happened is that the package I sent was not even processed...

At the USCIS they first go through all the paperwork and either accept and process, then deny or approve. Or they reject the paperwork without processing.

My I-130 and I-485 package was rejected, stating that cannot be processed since the priority date wasn't current.

the paperwork was returned to me ( all of it).

I left the U.S.

Hope it helps.... After the paperwork was rejected I was dealing with a lawyer, he said there's no chance to adjust the staus from a tourist visa....you might file I-130 and I-485 conccurently but only if the priority date is current ( I did not ever got the whole idea for the priority dates and what does that mean...)

Did you have to fill out I-130 concurrently?

Did they cash the check already?

[need_help_now 0]

I believe you're right Katgrl! Parents fall under a different category.

This is from the USCIS website (link provided below):

The Immigration and Nationality Act (INA) permits the change of an individual's immigration status while in the United States from nonimmigrant or parolee (temporary) to immigrant (permanent) if the individual was inspected and admitted or paroled into the United States and is able to meet all required qualifications for a green card (permanent residence) in a particular category.

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=2da73a4107083210VgnVCM100000082ca60aRCRD&vgnextchannel=2da73a4107083210VgnVCM100000082ca60aRCRD

Honestly, if we had any inkling this was going to raise questions about misrepresentation, we would not have applied. We have absolutely no intent to cheat, that's what makes it hard to get legitimate help without people assuming the worst about us. We have had a lawyer from the beginning, hopefully that'd help.

[Harsh_77 718]

I believe you're right Katgrl! Parents fall under a different category.

This is from the USCIS website (link provided below):

The Immigration and Nationality Act (INA) permits the change of an individual's immigration status while in the United States from nonimmigrant or parolee (temporary) to immigrant (permanent) if the individual was inspected and admitted or paroled into the United States and is able to meet all required qualifications for a green card (permanent residence) in a particular category.

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=2da73a4107083210VgnVCM100000082ca60aRCRD&vgnextchannel=2da73a4107083210VgnVCM100000082ca60aRCRD

Honestly, if we had any inkling this was going to raise questions about misrepresentation, we would not have applied. We have absolutely no intent to cheat, that's what makes it hard to get legitimate help without people assuming the worst about us. We have had a lawyer from the beginning, hopefully that'd help.

Having a lawyer does not change a bit..... your parents do not fall under the current date situation - parents are always current.

The only thing is you will have to prove that there was no mis-representation and you have no intent to immigrate.

Coz all USCIS has to do challenge - what changed in your parents situation that was so dramatic that they had to file for AOS. You could had started the process after they returned to India.

So USCIS can say they had all the intent when they entered on B1/2 which could be considered mis-representation, which can cause problem later on.

[Rebecca Jo 1,962]

Having a lawyer does not change a bit..... your parents do not fall under the current date situation - parents are always current.

The only thing is you will have to prove that there was no mis-representation and you have no intent to immigrate.

Coz all USCIS has to do challenge - what changed in your parents situation that was so dramatic that they had to file for AOS. You could had started the process after they returned to India.

So USCIS can say they had all the intent when they entered on B1/2 which could be considered mis-representation, which can cause problem later on.

CBP let them through. The issue of intent is moot.

Here's the deal. Preconceived intent is not allowed. Adjustment of status for an immediate relative of a US citizen is an exception rather than simply an alternative to the normal immigrant visa process. However, there have been several cases, the most significant more than two decades ago, that established that while preconceived intent is a serious negative factor, it's not sufficient on it's own to justify denial of AOS. It doesn't matter if the preconceived intent actually existed in the minds of the immigrants - USCIS can't read people's minds - it matters what evidence they have that the intent existed. But again, if preconceived intent is all they've got against them then they won't use that as a basis to deny AOS.

So, when they find evidence of preconceived intent then they look for an indication that the immigrant may have misrepresented their intent to an immigration officer at some point - during the visa interview, or at the port of entry, usually. Any statement, even if it's a canned statement on a CBP processing form, that states they do not intend to immigrate can be determined to be an intentional misrepresentation if they find evidence to the contrary.

You need to microanalyze everything that happened at the port of entry. Did they bring the documents needed for AOS with them? Is it known or is it possible that CBP or TSA found those documents? Did they sign any form or make any statement that they did not intend to immigrate, and were only coming to visit? If they were jacked around at the port of entry then it's possible they were given a statement to sign, and that statement may have included an affirmation that they do not intend to immigrate.

Unless you're absolutely certain that they don't have the two pieces of the puzzle - evidence of preconceived intent, and a statement to the contrary - then you're taking a risk by attempting to adjust their status.

What a load of rubbish.

[Rebecca Jo 1,962]

http://imminfo.com/Resources/CIS/matter_of_cavazos.html

Interim Decision # 2750

Volume 17 (Page 215)

United States Department of Justice

Board of Immigration Appeals

MATTER OF CAVAZOS

In Deportation Proceedings

A-22365153

Decided by Board January 8, 1980

(1) While an Immigration and Naturalization Service Operations Instruction binds neither an immigration judge nor the Board, the Service policy manifest therein may appropriately be considered by the immigration judge and the Board in exercising discretion.

(2) Notwithstanding evidence establishing preconceived intent, an application for adjustment of status should as a general rule be granted in the exercise of discretion in the case of an immediate relative or other specified alien who under Operations Instruction 245.3(b) and 8 CFR 242.5(a)(2) and (3) could be granted voluntary departure until invited to appear before a United States consul to apply for an immigrant visa.

(3) Where a finding of preconceived intent was the only negative factor cited by the immigration judge in denying the respondent's application for adjustment of status as the beneficiary of an approved immediate relative visa petition and no additional adverse matters are apparent in the record, and where significant equities are presented by the respondent's United States citizen wife and child, a grant of adjustment of status is warranted as a matter of discretion.

CHARGE:

Order: Act of 1952--Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]--Nonimmigrant-- remained longer than permitted

ON BEHALF OF RESPONDENT:

Laurier B. McDonald, Esquire

P.O. Drawer 54

Edinburg, Texas 78539

ON BEHALF OF SERVICE:

Richard M. Casillas

Trial Attorney

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This case is before us on appeal from the December 21, 1977, decision of an immigration judge, rendered in reopened deportation proceedings, which denied the respondent's application for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255. The appeal will be sustained.

The respondent, a 26-year-old native and citizen of Mexico, entered the United States as a nonimmigrant visitor for pleasure on July 1, 1976, upon presentation of a border crossing card, Form I-186, issued to him in 1972.1 On that same date, he married his United States citizen spouse whom he had known for a considerable period of time prior to their marriage; a child was born in the United States in 1974 as a result of that relationship.

At the initial deportation hearing, the respondent conceded deportability as a nonimmigrant who remained longer than permitted and was granted the privilege of voluntary departure in lieu of deportation. Prior to the expiration of the authorized period of voluntary departure, the respondent filed the present motion to reopen for consideration of his application for section 245 relief predicated upon his status as the beneficiary of an approved immediate relative visa petition. The immigration judge granted the respondent's motion to reopen the deportation proceedings, found him statutorily eligible for adjustment at the reopened hearing that ensued, but denied him the relief sought in the exercise of discretion on the ground that he had entered the United States in July of 1976 with a preconceived intent to remain permanently.

We find that the record, while providing some support for the immigration judge's findings, is ambiguous at best with respect to the respondent's actual intentions at the time of his entry. We need not dwell on that question, however, in light of our conclusion that the adverse factor of preconceived intent, if it existed, has been overcome by the equities presented.

We note with approval present Immigration and Naturalization Service policy, as reflected in Service Operations Instruction 245.3(b), regarding the discretionary grant or denial of an adjustment application. Operations Instruction 245.3(b) provides that notwithstanding evidence establishing an intent on the part of a nonimmigrant to circumvent the normal visa process, i.e., a preconceived intent to remain permanently at the time of entry as a nonimmigrant, an adjustment application should not be denied in the exercise of discretion where substantial equities are present in the case. Under that Instruction, substantial equities are considered to exist if the facts are such that the alien would be granted voluntary departure until he is invited to appear at a United States consulate to apply for an immigrant visa. The Code of Federal Regulations, 8 CFR 242.5(a)(2)(vi)(A) and 245.5(a)(3),2 authorizes the District Director in his discretion, to grant voluntary departure to an immediate relative of a United States citizen,3 prior to the commencement of his deportation hearing, until such time as the United States consul abroad is ready to issue an immigrant visa.

The Service's internal Operations Instruction 245.3(b) binds neither the immigration judge nor the Board; moreover, under the express terms of the regulation which gives effect to the Instruction, whether an alien may benefit from the Instruction as one who would be granted extended voluntary departure is a discretionary determination to be made by the District Director prior to the commencement of the hearing. We believe, however, that the policy manifest in the Instruction, i.e., to favor immediate relatives seeking a grant of adjustment of status by essentially negating preconceived intent as an adverse factor in meritorious cases, may appropriately be adopted by the immigration judge and the Board in exercising discretion on applications for relief under section 245.

The finding of preconceived intent was the only negative factor cited by the immigration judge in denying the respondent's adjustment application and no additional adverse matters are apparent in the record. A significant equity is presented by the respondent's United States citizen wife and child. We conclude that a grant of adjustment of status is warranted in this case and will accordingly sustain the appeal and remand the record to the immigration judge for further processing of the application for adjustment of status filed by the respondent and for the entry of an order not inconsistent with this opinion. In light of our holding, we need not reach the alternative arguments advanced by the respondent on appeal.

ORDER: The order of the immigration judge is vacated and the record is remanded for further proceedings in accordance with the foregoing opinion.