AOS without prior visa?

[HeartOfAllThings 2]

Is the family friend an Immigration Attorney who has dealt with this exact type of case? If not get one who is.

She's not. An acquaintance of her's is an immigration lawyer but only knows canadian immigration. She's going to ask him if he can recommend someone in our area(nor cal)

[Brit Abroad 166]

Well, here's the thing. All visa applications are linked to names and dates of birth (and passport number if you sent copies of passport pages as part of the application). As soon as the CBP officer scans the passport, it comes up telling them that there is a visa in process (or rejected/denied application). This normally generates the question as to the purpose of visit. The answer is often recorded on the system by the officer.

If you lie by saying it's just a visit, get married and then apply for AoS, you're sprung and you can't exactly say "well, I didn't know". If you say yes, there's a high chance of being refused entry. The times I visited hubby when we were engaged, I was reminded (not particularly subtly or gently) that I shouldn't attempt to stay and they wanted to see the return stub for my flight. This, to someone who had visited the US countless times in the past and never overstayed a visa.

Choice is yours, dude. Personally, a couple of months apart wouldn't make most of us risk our long term future or be staring at waivers to get in after a denied entry.

Edited June 11, 2011 by Brit Abroad

[Moomin 292]

I don't doubt OP wanted to go down the K1 road : ) I'm not suggesting it's against any laws trying to AOS - it's the outcome I had in mind, and denial does not mean you've committed a crime. At any point of time USCIS may ask for something additional - the circumstances and changes and why the OP didn't include anything supporting with the i-129f. They're allowed to ask, right? And they're allowed to deny any petition or application with insufficient evidence, documents or forms. Based on that if the believe it to be insufficient evidence or none at all then it's relevant to OP to know it may trigger a denial, regardless of having a return ticket and noa1 in hand while the i-129f was pending. That was my original thought, and OP deserves to atleast know I wasn't judging him.

It's not an excuse, their circumstances are different.

Coming here with the intent to stay and lying at CBP when you enter is visa fraud.

Being here and then deciding to marry and stay is legal.

If you and your fiancé had met in the US, or come here on holiday and decided to get married out of the blue or had a change in circumstance then this option would be open to you also. Sucks that it's not and you have to go down the K1 route, but it is not a 'loophole' or even wrong for others to be here on a tourist visa and adjust their status, if it is legal in their specific circumstance. Which is seems in the case of the OP, it might be.

Best wishes OP. Ignore people's judgments on your situation and stick to the facts people give you. As Harpa said, read the guides and gather as much information as you can before taking the next step.

[JimVaPhuong 4,863]

I don't doubt OP wanted to go down the K1 road : ) I'm not suggesting it's against any laws trying to AOS - it's the outcome I had in mind, and denial does not mean you've committed a crime. At any point of time USCIS may ask for something additional - the circumstances and changes and why the OP didn't include anything supporting with the i-129f. They're allowed to ask, right? And they're allowed to deny any petition or application with insufficient evidence, documents or forms. Based on that if the believe it to be insufficient evidence or none at all then it's relevant to OP to know it may trigger a denial, regardless of having a return ticket and noa1 in hand while the i-129f was pending. That was my original thought, and OP deserves to atleast know I wasn't judging him.

Preconceived intent is definitely illegal. There was a time when INS (the predecessor of USCIS) used to deny AOS routinely if they even suspected preconceived intent. A series of BIA rulings in the 1980's put a stop to that. Adjustment of status is a discretionary benefit that the IO is supposed to grant or deny based on weighing the positive and negative factors. The BIA determined that preconceived intent was definitely a negative factor, but being an immediate relative of a US citizen was a positive factor that outweighed the preconceived intent. This became INS policy, and this policy was inherited by USCIS, and described in the Adjudicators Field Manual.

USCIS will not deny AOS solely for preconceived intent, even if they have strong evidence that the intent existed at the time the alien entered the US. However, what they will do is look for any evidence that the alien lied about their intent to any immigration officer. Evidence of preconceived intent, combined with evidence that the alien lied about their intent, is material misrepresentation. The negative weight of material misrepresentation is far greater than the positive weight of being an immediate relative of a US citizen, and they will deny AOS for this. In addition, a finding of material misrepresentation comes with a ban from the US.

If a CBP officer finds any evidence of preconceived intent, then they will often grill the alien about their intentions without tipping their hand. If the alien says they have no intention to immigrate then the CBP officer will record their statement into their record, and admit them to the US. If they subsequently try to adjust status then they've got them for material misrepresentation. There have been a few VJ cases where the CBP officer had brought an alien into secondary inspection, and the questions asked were clearly a set up for a material misrepresentation charge if they later tried to adjust status.

[Helen Louise Pile 80]

That was my original thought, and OP deserves to atleast know I wasn't judging him.

Fair enough.

[Casprd 167]

It's not really clear to me how they could enforce the lack-of-intent rule. Obviously a person's real thoughts are in his or her mind, and they don't read minds at the POE. they don't conduct polygraph tests either. So unless a person is so stupid to write it on FB (status "Tomorrow crossing and marrying my love") and then he or she gets caught, there is no real way to prove intent.

Even a direct question at the POE ("Do you intend to marry?") is meaningless, because someone could always argue that at the time the person answered the question, there was no intent. Then, outside, in the airport parking garage, there was a sudden change of heart.

What I am saying is that there must be something else that is taken into consideration by the USCIS to approve or deny AOS requests.

Correct up to a point. The issue will come with the documents required to get married here and AOS. These aren't usually documents you would bring with you. If you cross the border and have these documents with you then that is pretty clear intent. It is a sticky situation, but as long as the OP can get the documents they need without going back to Canada, it is prefectly legal to get married and AOS while here. The denial of the I-129 would work in their favor I think, especially if they are in the US when it is denied.

[HeartOfAllThings 2]

I don't have any other documents than my passport and drivers license. I lived at my parents so don't really have loose ends over there even though I do have some stuff of mine at their place still. No biggie they can xpress post my birth certificate n stuff.

I will def get a consult with an attorney next week once we're moved in, to clear things out. I'm v grateful for the vj community for all the responses I've had but given the amount of conflicting information I still feel like I can't take the chance even though I'd really want to. No decision taken, I'll wait to hear it from a professional in US immigration.

[newlyweds2010 208]

Correct up to a point. The issue will come with the documents required to get married here and AOS. These aren't usually documents you would bring with you. If you cross the border and have these documents with you then that is pretty clear intent. It is a sticky situation, but as long as the OP can get the documents they need without going back to Canada, it is prefectly legal to get married and AOS while here. The denial of the I-129 would work in their favor I think, especially if they are in the US when it is denied.

There is nothing you can't have shipped from the old country. Plus, traveling with a birth certificate is not very conclusive evidence of anything. I agree that if the denial occurred after the OP crossed the border, it would be in their favor.

[Andy and Pui 16]

Not yet. We're moving Next Wednesday so it will be anytime after that. Looking forward to it

Just to verify you are in the United States right now? When you say we are moving next Wednesday do you mean from someplace in the United States to another place in the United States or were you planning on returning to Canada and moving your stuff to the United States?

[HeartOfAllThings 2]

Just to verify you are in the United States right now? When you say we are moving next Wednesday do you mean from someplace in the United States to another place in the United States or were you planning on returning to Canada and moving your stuff to the United States?

We're moving 5 hours away, staying in California.

I actually had planned to go back to Canada in July to present Leia to my family & friends (she only saw my parents so far) but now it most likely wont happen until a lil while. If we do end up going for AOS then I need an authorization to leave the country. If we file another I129-F or get married and file CR-1 then I wouldn't risk being denied entry on my way back to the states after the 4day trip, and would much rather wait here til my 4+ months are done.

I don't need to move stuff from Canada to the states. I still live at my parent's and the furniture in my room was all theirs. Even got all my winter gear with me since there's still quite a bit of snow up in the mountains of Nor Cal and the Sierras.

Only thing I'll need to be mailed is the papers needed for marriage.

Edited June 11, 2011 by HeartOfAllThings

[Krikit 1,164]

Well, here's the thing. All visa applications are linked to names and dates of birth (and passport number if you sent copies of passport pages as part of the application). As soon as the CBP officer scans the passport, it comes up telling them that there is a visa in process (or rejected/denied application).

On the contrary, the officer does not have access to this information. Once the visa is in the passport, then they can see it. But not before. The only time they will become aware of an application in progress is if the beneficiary tells them.

[ValerieA 350]

I'm weighing in on the side of Harpa here, you should not have a problem with intent. I came across when my CR-1 was in process, and when circumstances changed (including an RFE that would have delayed my CR-1 an additional 6 months), we switched to AOS. Our lawyer's stance (which made a lot of sense to me) was that we proved we had no intent by filing the CR-1 initially and keeping up with the payments and filings. If I had just entered on the usual B-2 (as Harpa said, this is what Canadians automatically enter the US on) and AOS'd, well, it would have been way cheaper - but illegal.

Jim, I have a theoretical question for you:

If the alien says they have no intention to immigrate then the CBP officer will record their statement into their record, and admit them to the US. If they subsequently try to adjust status then they've got them for material misrepresentation.

I don't agree with this, because frankly, it would be a case of damned if you do, damned if you don't. If I had been asked this in secondary inspection, I would have said a resounding NO, I was not intending to immigrate on that particular cross of the border, but was waiting to do it when I got my CR-1. My circumstances changed. So, there was no intent, and no material misrepresentation.