No idea which forum to post

[AzRich 0]

My wife and I have been married since May of this year. She visits me regularly in the US or I go to Mexico. We met with a lawyer this past week for a consultation on what path to take. I originally thought that consular filing would be the route to take, but he suggested that she just live with me in the US for about 60 days and then we file for an Adjustment of Status.

Her current I-194 is good until Decemeber so that would not be a problem staying that long from what I understand. He suggested waiting about 60days so that her last entrance is not viewed as intent to immigrate and then I use the I-130 to start the process.

So what area here on Visa Journey can I post in to ask questions about this advice that we have been given?

Thanks

[Inky 1,110]

That lawyer is telling you to commit immigration fraud. That is VERY serious and has VERY serious repercussions if you are found out.

You should be filing the I-130 now and wait for the process to complete so she may enter the USA with a CR-1 visa and get a green card on entry.

[Ning 619]

My wife and I have been married since May of this year. She visits me regularly in the US or I go to Mexico. We met with a lawyer this past week for a consultation on what path to take. I originally thought that consular filing would be the route to take, but he suggested that she just live with me in the US for about 60 days and then we file for an Adjustment of Status.

Her current I-194 is good until Decemeber so that would not be a problem staying that long from what I understand. He suggested waiting about 60days so that her last entrance is not viewed as intent to immigrate and then I use the I-130 to start the process.

So what area here on Visa Journey can I post in to ask questions about this advice that we have been given?

Thanks

The days that follow those 60 days may be dark indeed. You will have commited immigration fraud. The price you pay for that lie will far outweigh the cost of the truth.

Dont put yourselves in that position. Do this right while following the law. Begin by finding a new lawyer if you feel you need one or simply do it yourself with some help from V J. Here you will get advise from people that did this by understanding the procedures & the laws.

[I AM NOT THAT GUY 5,715]

That lawyer is telling you to commit immigration fraud. That is VERY serious and has VERY serious repercussions if you are found out.

If that is the case, then the lawyer could be disbarred, or worse. I would give the lawyer the benefit of the doubt, at least until I consulted a few other lawyers.

Here you will get advise from people that did this by understanding the procedures & the laws.

You may want to reread the TOS.

[JimVaPhuong 4,863]

Before everyone jumps the gun, his wife is currently in the US. They consulted with the attorney AFTER she entered the US, and the lawyer suggested adjustment of status. There was no preconceived intent, and therefore no fraud. They can apply for AOS.

[Mrs Green 6]

I agree that they can definitely apply for AOS. He could justify the fact that he has waited a few months after marriage to file his application so AOS was not pre-conceived when his spouse entered the USA

[AzRich 0]

This is the second lawyer that I have paid for consultation and has pushed for the AoS instead of consular filing. It is getting pretty confusing hearing all of the back and forth between what is fraud and what is not.

[VanessaTony 3,567]

This is the second lawyer that I have paid for consultation and has pushed for the AoS instead of consular filing. It is getting pretty confusing hearing all of the back and forth between what is fraud and what is not.

It IS fraud to ENTER with immigrant intent.

It sounds like she entered WITHOUT immigrant intent, and that you saw a lawyer to discuss the DCF option. In your case it isn't fraud. Don't get me wrong, it DOES look odd that you married and she left, then entered again but they can't use intent ALONE against her. That said, it DOES matter what she was asked at POE, in case they tried to trap her (it's happened before).

[JimVaPhuong 4,863]

This is the second lawyer that I have paid for consultation and has pushed for the AoS instead of consular filing. It is getting pretty confusing hearing all of the back and forth between what is fraud and what is not.

Here's the deal.

It's illegal to enter the US with a non-immigrant visa if you intend to become an immigrant before you leave. The only exception are non-immigrant visas that allow for "immigrant intent", like the K1 fiancee visa.

On the other hand, an immediate relative of a US citizen (spouse, parent, or child) who has been admitted or paroled into the US may apply to adjust their status to permanent resident.

So, here we have a quandary. On the one hand, it's illegal to use a non-immigrant visa with the intention of immigrating. On the other hand, the law allows an immediate relative of a US citizen to get a green card.

Ok, entering the US with a non-immigrant visa while having the intention to immigrate is called "preconceived intent". It's illegal. The problem is that it's difficult to prove what somebody's intentions are at the moment they enter the US. This practically requires reading a person's mind. INS used to use circumstantial evidence instead. For example, if there was an immigrant visa petition pending when the alien entered the US then that's evidence of intent to immigrate. Likewise, if an alien enters the US carrying documents or other evidence that might be required to adjust status but would not normally be required by someone visiting the US then that's also evidence of intent to immigrate. Even something as benign as filing for adjustment of status soon after entering the US was construed as evidence of preconceived intent. INS used to routinely deny adjustment of status for an alien if they found evidence of preconceived intent. That came to an end with some BIA decisions back in the 1980's. The BIA determined that preconceived intent is a serious negative factor, but that it was generally outweighed by the positive factor of being an immediate relative of a US citizen. If preconceived intent is the only negative factor then USCIS immigration officers are supposed to use their discretion favorably, and approve the AOS.

However, when an immigration officer suspects preconceived intent then they will look more closely at the case to determine if there are any more egregious negative factors to consider. For example, was the alien subjected to secondary inspection when they entered the US? If so, were they questioned about their intentions? Did they make a statement that they did not intend to apply for permanent resident status before leaving? If so then the immigration officer may conclude that the alien lied about their intentions to the CBP officer, and that had the truth been told they might have been denied admission to the US, which means they lied about a material fact. The immigration officer can conclude the alien is guilty of material misrepresentation, and can not only deny the AOS, but ban the alien from the US for the misrepresentation.

Your attorney is suggesting you wait a couple of months to reduce the chances that USCIS would suspect preconceived intent. His advice is based on an old rule of thumb that USCIS used to follow. This rule stated that someone who applied to adjust status within 30 days of entering the US was presumed to have preconceived intent, someone who applied between 30 and 60 days should be closely examined to determine if there exists evidence of preconceived intent, and someone applied after 60 days probably didn't have preconceived intent. USCIS hasn't used this rule in more than 20 years, but many attorneys still presume that they do.

If your wife didn't have any intention of adjusting status when she entered the US, and if you're confident that USCIS won't have any evidence that she might have had such intentions (e.g., if she was subjected to secondary inspection) then you should be able to apply for adjustment of status without any problems.