From Tourist visa to Permanent Residence....

[JimVaPhuong 4,863]

For some reason, I've lost the ability to quote on here....

The parents are in Russia. They have come here on a B2 every year for the last 10-12 years, for 30 to 90 days. They were here last year and decided they wanted to stay, and that's when we talked to the lawyer about the AOS - the one that would charge them $10,000. That was to cover his fees, the AOS, the I-130, Advance Parole, Work Authorization, etc. It was just too much money, and they were out of time, so they just went back for now. Now we are just exploring various options for getting them over here. I'm beginning to think about just doing the whole thing myself, maybe with just periodic checks with an attorney.

This may come as a surprise (or maybe not - depends on how much you've had to deal with lawyers) but what the lawyer was suggesting was not legal. But, we hear about lawyers making the same recommendation almost every day.

Here's the deal - someone who qualifies as an immediate relative of a US citizen can adjust their status and get a green card if:

1. They make an application (this is the I-485).

2. They were admitted or paroled into the US (people who walk across the border or swim the Rio Grande aren't eligible).

3. They are eligible to receive an immigrant visa and they are not inadmissible (no serious criminal history, etc.).

4. A visa number is immediately available to them (this is what the I-130 is for).

So, applying for a green card, in itself, is not illegal. They would meet the requirements above, so they would be eligible. The problem is the non-immigrant visa they entered the US with. There are terms that apply to a B2 visa, one of which is that the alien has no intention of becoming an immigrant while they're visiting the US. There are visas specifically for people who want to immigrate to the US, and the B2 isn't one of them.

And herein lies the problem...

Many people, including many immigration lawyers, view the eligibility to adjust status as an alternative to the normal immigrant visa process. This is clearly not how Congress meant it to be used, and it was the policy of INS (the predecessor of USCIS) to grant AOS somewhat sparingly unless the alien entered the US with a visa that specifically allowed for immigrant intent. This came to a screeching halt in the mid 1980's with a series of BIA cases. The BIA in those cases determined that, while preconceived intent was a serious negative factor in adjudicating an AOS application, it wasn't a strong enough negative factor to outweigh the positive factor of an alien who was an immediate relative of a US citizen. Because of this INS, and now USCIS, will not deny AOS solely for preconceived intent. This doesn't change the fact that preconceived intent is illegal, and it doesn't relieve Department of Homeland Security of the responsibility of enforcing the law.

So this is where it's left us...

CBP, ICE, and USCIS can't do much about an immediate relative who meets the requirements to adjust status. They can't stop them from adjusting status just because they suspect they had a preconceived intent to adjust status when they entered. If fact, they can't stop them from adjusting status even if they have solid proof that they had preconceived intent to adjust status when they entered. Instead, they try to catch preconceived intent before the alien is admitted to the US. If the CBP officer suspects preconceived intent then they may ask pointed questions about it. If they aren't satisfied with the answers then they may pull the alien into secondary inspection and grill them about it for several hours. They may search their luggage looking for evidence - "Why did you bring your birth certificate and marriage certificate if you're only visiting the US?". If they do choose to admit them, they may ask them to sign a statement swearing that they don't intend to immigrate. This is a trap. If they subsequently apply for AOS then their statements, oral or written, at the time of entry would be construed as a material misrepresentation; i.e., they lied about a material fact that would have affected the CBP officer's decision. While preconceived intent isn't enough to deny AOS, a material misrepresentation is more than enough. It's also enough to ban the alien from ever returning to the US.

Your high priced attorney probably didn't discuss any of this with you, but I'm sure he would address it if you brought it up. His response would probably be "The odds of that happening are remote", which would be true. And if your parents did happen to get pulled into secondary inspection and grilled then I'm sure your attorney would be more than happy to accept as much money as you're willing to give him in order to try to fix the mess you would have created if you followed his guidance and filed the AOS anyway. An unscrupulous attorney has no problem recommending you take risks, no matter how small the odds are that things will go wrong, because it isn't their butt on the line - it's yours. And you know this attorney is unscrupulous because he's already recommended you do something which you now know is not legal.

The crux here is that entering the US with a non-immigrant entry pass while having the preconceived intent to immigrate is illegal. Nobody on VJ can recommend you do anything that is a violation of immigration law. It's contrary to the terms of service of this site. This site promotes legal immigration, and not ways to circumvent immigration law.

Good luck, and I hope you make the right decision.

[Casprd 167]

For some reason, I've lost the ability to quote on here....

The parents are in Russia. They have come here on a B2 every year for the last 10-12 years, for 30 to 90 days. They were here last year and decided they wanted to stay, and that's when we talked to the lawyer about the AOS - the one that would charge them $10,000. That was to cover his fees, the AOS, the I-130, Advance Parole, Work Authorization, etc. It was just too much money, and they were out of time, so they just went back for now. Now we are just exploring various options for getting them over here. I'm beginning to think about just doing the whole thing myself, maybe with just periodic checks with an attorney.

So if they are in Russian now and are wanting to stay in the US then using the B-2 to get here and then file for AOS is wrong. Regardless of whether they get caught or not it is still wrong. It is against the law, it is fraud and everytime someone does something like this it makes it harder for everyone of us to have our family visit us in the US. Just because you "can" do something doesn't mean you "should" do it.

[Sergi9 110]

This may come as a surprise (or maybe not - depends on how much you've had to deal with lawyers) but what the lawyer was suggesting was not legal. But, we hear about lawyers making the same recommendation almost every day.

The crux here is that entering the US with a non-immigrant entry pass while having the preconceived intent to immigrate is illegal. Nobody on VJ can recommend you do anything that is a violation of immigration law. It's contrary to the terms of service of this site. This site promotes legal immigration, and not ways to circumvent immigration law.

Good luck, and I hope you make the right decision.

The reason this guy charges 10k for a simple I130 and I485 is because if he gets 10 people on the hook for 10k its 100k to subsidise the case that goes "sideways" and ends up taking years in court.

There is no reason to AOS stateside on a tourist VISA when they are already in Russia now. File the I130, get it approved and do it gracefully and in a way you don't have to worry about some gung-ho CBP officer having a bad day screwing up your family life.

Good luck

[Brother Hesekiel 2,236]

All the legal implications aside, there is a financial advantage of going the IR-5 route instead of AOS.

Somebody who is in the US and files for AOS has to pay $1,070 per person on top of all the other expenses, such as the I-130 ($420) and the medical. During the approximate 5-months waiting time they cannot get a SSN, cannot get a driver's license, cannot work, cannot do anything really.

The IR-5 route does not have the expense of the AOS, and the immigrants enter the US as lawful permanent residents. Whey arriving at the airport, they get an I-551 stamp in their passports which will allow them to get a SSN, a driver's license, to work, to anything they want. Their Green Cards will arrive in the mail a few days later.

AOS is really for people who happen to be in the US and don't need to go back, or who don't have the option to go back as they would trigger a bar for unlawful presence when leaving. In such a case the extra expense for AOS and the months-long waiting time is nothing compared to the alternative they would face.

[Darnell 8,478]

IR-5's rock ! It says so, right there on the label !

[Ruark 4]

I can't tell you how much I appreciate all your comments, and the time and effort you expended in writing them. Hopefully someone else will benefit from this information as well.

I have discussed this with my wife and her parents, and have decided to just do the I-130 myself, consulting with an attorney if needed. There will also be an attorney on call for her parents in Russia if they have a question.

I did my wife's I-130 back in the middle 90's (with a ball point pen!) and it was really simple, and that was WITHOUT the enormous internet resources we have today. Her parents will go to Moscow and do the medicals and the interview, then return to Ekaterinburg and receive their visas there via DHL. Then they will be all finished, and have 6 months to relax, settle their affairs, etc. before coming to the US.

In any case, I will definitely continue reading this forum, and hopefully I can help someone else here as much as you've helped me. Again... thanks!