AOS for Spouse - Visitor to Resident

[nolananda 0]

My wife and I are intending a camping vacation to the United States from Canada for a few months. She is a dual-citizen of Canada and United States. I am a Canadian citizen. We have been married for more than three years. I am in school (PhD) and therefore have ties to Canada and will need to return to Canada sometime before my visitor's visa expires.

We are not presently intending to relocate to the US, but it is possible that during our trip this intention could change. Suppose we decide, after we are in the United States, to stay. Is it possible to change the status of my visa, have my wife file an I - 130, and reside in the US while the application is pending?

Edited June 21, 2011 by nolananda

[Darnell 8,479]

Hey - welcome to VJ - please take a peek at the Guides section, find one that seems appropriate to your situation, then read it...

[Harsh_77 718]

You can, but doing an AOS from tourist to CR1 is not recommended, this always raises the flag as if you had intent or not at the point of entry with B1/2 visa.

There has been cases from whom it went smooth and they were able to adjust and there has been cases where it has been rejected.

If you really intent to immigrate then do it correctly where upon complete the camping trip return back to CA and let your spouse start the immigration paperwork for you. It takes 6-8 months to complete the paperwork, which is not bad.

[nolananda 0]

You can, but doing an AOS from tourist to CR1 is not recommended, this always raises the flag as if you had intent or not at the point of entry with B1/2 visa.

There has been cases from whom it went smooth and they were able to adjust and there has been cases where it has been rejected.

If you really intent to immigrate then do it correctly where upon complete the camping trip return back to CA and let your spouse start the immigration paperwork for you. It takes 6-8 months to complete the paperwork, which is not bad.

Thanks Harsh_77; this sort of reply is quite helpful. I wonder, do you think that my status as a student would mitigate the suspicion about intent, or do you think that this is irrelevant?

[Casprd 167]

No it wouldn't mitigate the suspicion. There are specific documents you would need to have for doing the AOS. These aren't documents that a tourist would normally travel with (i.e. birth certificate). Just having them with you indicates intent. It is a very slipery slope and many people do it without problems, but as the saying goes, just because you can do something doesn't me you should do it. If it is really a spur of the moment thing then good luck, but since you are already considering it, it isn't really a spur of the moment thing. The one thing I always point out is any time someone comes to the US and adjusts status, it just reinforces the CO and CBP's traingin that every tourist intends to immigrate and makes it more difficult for those of us who try to bring our family over for a visit.

[Jojo92122 1,924]

Thanks Harsh_77; this sort of reply is quite helpful. I wonder, do you think that my status as a student would mitigate the suspicion about intent, or do you think that this is irrelevant?

Only USCIS can answer this question when you attempt to adjust your status.

Since you are already thinking about immigrating to the US on this trip, you are playing with fire. You could end up getting your adjustment denied because of fraud.

Why not just do it the right and legal way? Have your wife file for you and wait. You will not get nicked for fraud. This is the much safer and legal choice.

[NHKx2 43]

Are you going to bring all of your worldly possessions with you on this "camping trip" just in case you decide to stay "on the spur of the moment?"

[nolananda 0]

Only USCIS can answer this question when you attempt to adjust your status.

Since you are already thinking about immigrating to the US on this trip, you are playing with fire. You could end up getting your adjustment denied because of fraud.

Why not just do it the right and legal way? Have your wife file for you and wait. You will not get nicked for fraud. This is the much safer and legal choice.

Thanks for the replies. To be clear, we have no intention at present to move permanently to the United States.

My question, asked an answered, is whether one can adjust one's status along the lines suggested and stay in the country while the status is adjusted.

I'm not certain if one is required to have never considered immigrating in order to be clear of the charge of fraud. The 'spur of the moment' criteria seems to me, anyway, too strong because it appears to require that every adjustment is pursued on the basis of unforeseen contingencies that simply arise, i.e. meeting the love of your life while travelling. I can foresee myself making a considered decision to attempt to stay in the US based my experience on the trip (or based on any number of factors), but I haven't made such a decision, and therefore have no present intention to stay, and therefore have no present intention to adjust my status when I go. And so, requesting admission under a tourist visa would not, as a matter of fact, constitute fraud.

Perhaps this is wrongheaded, and even asking the question somehow demonstrates that I must have the intent. But typically, asking after options does not constitute evidence of intent to pursue those options, especially when pursuit of one of those options requires that some other condition be fulfilled (in this case, that I have a plan for finishing school).

Edited June 21, 2011 by nolananda

[JimVaPhuong 4,863]

Thanks for the replies. To be clear, we have no intention at present to move permanently to the United States.

My question, asked an answered, is whether one can adjust one's status along the lines suggested and stay in the country while the status is adjusted.

I'm not certain if one is required to have never considered immigrating in order to be clear of the charge of fraud. The 'spur of the moment' criteria seems to me, anyway, too strong because it appears to require that every adjustment is pursued on the basis of unforeseen contingencies that simply arise, i.e. meeting the love of your life while travelling. I can foresee myself making a considered decision to attempt to stay in the US based my experience on the trip (or based on any number of factors), but I haven't made such a decision, and therefore have no present intention to stay, and therefore have no present intention to adjust my status when I go. And so, requesting admission under a tourist visa would not, as a matter of fact, constitute fraud.

Perhaps this is wrongheaded, and even asking the question somehow demonstrates that I must have the intent. But typically, asking after options does not constitute evidence of intent to pursue those options, especially when pursuit of one of those options requires that some other condition be fulfilled (in this case, that I have a plan for finishing school).

You're seeing it from the wrong perspective. Adjustment of status was specifically designed for people who enter with a visa that permits immigrant intent, like an H1B or a K1. Allowing an immediate relative of a US citizen to adjust status after entering with a visa that does NOT permit immigrant intent (like a B2) is an exception to the rule. Exceptions are meant to be used in unusual circumstances. It's not simply an alternative to normal immigrant visa processing.

They could conclude you were guilty of fraud if they found evidence of intent when you applied for admission, got your statement that you did not intend to immigrate, and then you applied for adjustment of status. You wouldn't be denied for the intent, but because they had evidence you lied about the intent. This could happen even if you really didn't intend to immigrate when you entered, and you were being completely truthful. It doesn't matter what was going on in your head when you applied for entry because they can't read your mind. What matters is what evidence they have. You may not know what evidence they have until your AOS interview. If the CBP officer finds something when you apply for admission they aren't necessarily going to tell you about it.