My wife & children

[Dual National 0]

Reading through your link again, it would seem that my wife's intent is in fact irrelevant -- if the legal analysis presented holds true -- by virtue of her marriage to me and our custody of the children, who are US citizens. The legal precedents cited would appear to endorse applying for a change of status in the US, as "immediate relatives of U.S. citizens do not encounter the issues of presumed/preconceived fraudulence."

In the first example cited, the author writes: However, since Joe is the immediate relative of a United States citizen, he has significant family ties within the U.S. Therefore, Joe would be exempt to the 30/60 day rule and his adjustment of status application could not be denied on the basis of preconceived intent.

There may be LESS risk, therefore, in her applying from within the United States and waiting there for the result -- which, in the unlikely event her application is denied, could be challenged using home-field resources in the United States. (Seems unlikely in any case that the govt would want to deny her application, which can hardly be seen as unlawful. There's certainly no issue over the marriage, after 18 year without applying for an immigrant visa. She has advanced degrees and certified skills.)

If she were similarly denied while abroad, the situation might prove much more difficult and expensive to rectify.

I'll have to think all this through, but at this stage an application for change of status seems like the attractive option. If I'm missing something, please let me know.

The time involved is another factor, and if it is significantly faster for her to apply from outside the US, we have to take this into consideration, too.

I just assumed. My bad. But nope doesn't matter for your process but would depend on whether there's DCF or not.

[Hypnos 6,576]

The 30 / 60 / 90 day rule is a fallacy that has been doing the rounds for some time now. Put no credence in it, it is junk.

I doubt that your wife would have any issue if she filed for AoS.

You will often find on these forums that people who entered on an immigrant visa / K-1 will themselves advocate doing as they did, and those who entered on a nonimmigrant visa and AoS'd will advise the same. At the end of the day it's your decision, but I see no adverse factors which would prevent your wife from AoS'ing. This process would take ~3 - 6 months, if you chose to pursue it.

Edited January 1, 2013 by Hypnos

[N-o-l-a 7,168]

Correct. I'd do DCF myself as you live overseas as well. This will make the process significantly quicker for you. Even if there isn't DCF available they tend to fast-track i-130 when the USC spouse is overseas. There's nothing stopping her from continuing to visit during the process or even remaining there for a bit then returning to India to process a bit.

She'll enter the US with an IR-1 visa which will result in a 10 year greencard. She can work, travel etc immediately.

They no longer fast track those from non-DCF countries, at least for the last 4,5 months they haven't.

[VanessaTony 3,567]

Reading through your link again, it would seem that my wife's intent is in fact irrelevant -- if the legal analysis presented holds true -- by virtue of her marriage to me and our custody of the children, who are US citizens. The legal precedents cited would appear to endorse applying for a change of status in the US, as "immediate relatives of U.S. citizens do not encounter the issues of presumed/preconceived fraudulence."

In the first example cited, the author writes: However, since Joe is the immediate relative of a United States citizen, he has significant family ties within the U.S. Therefore, Joe would be exempt to the 30/60 day rule and his adjustment of status application could not be denied on the basis of preconceived intent.

This is where the previous post I wrote about "difference of opinion" comes in. In that example he DID NOT enter with intent to commit fraud (i.e. stay) but he changed his mind. This is 100% legal. The problem in your situation is they have a letter outlining that you are planning on moving to the US. Your letter basically admits you have intent. That's where I would be worried. If the letter didn't exist you'd most likely be fine. But you've written to them, they have the letter, you said you want to move, and suddenly she visits the US and stays... Some people have decided that intent is irrelevant, whether known or not known. I am of the opinion based on readings (that other people read a different way) that KNOWLEDGE of intent is grounds for denial, as it's fraud, but presumtion (i.e. no proof) isn't. Your letter provides for knowledge of intent. That's why I wouldn't do it.

There may be LESS risk, therefore, in her applying from within the United States and waiting there for the result -- which, in the unlikely event her application is denied, could be challenged using home-field resources in the United States. (Seems unlikely in any case that the govt would want to deny her application, which can hardly be seen as unlawful. Entering with intent is immigration fraud. There is no doubt about that. Whether the fraud would be ignored for the spouse of a USC would be the factor here. There's certainly no issue over the marriage, after 18 year without applying for an immigrant visa. She has advanced degrees and certified skills.)

If she were similarly denied while abroad, the situation might prove much more difficult and expensive to rectify. I have no doubt given your relationships length that you would be approved

I'll have to think all this through, but at this stage an application for change of status seems like the attractive option. If I'm missing something, please let me know.

The time involved is another factor, and if it is significantly faster for her to apply from outside the US, we have to take this into consideration, too.

Like I said, it is completely up to you. I wouldn't do it because if it goes bad, she gets deported (or leaves voluntarily), she gets a ban for fraud (you can get a waiver but it takes time and money) and all manner of things. Would she most likely be fine? I can't tell you that but most would say "sure go ahead and do it" BUT they aren't the ones taking the risk, you, your wife and your kids are.

You sent USCIS a letter outlining your intent. She entered on a visitor visa so she claimed to be entering as a visitor when she's actually entering with intent to stay, which is immigration fraud, those are all facts. Whether this would cause you issues... well maybe it won't... but what if it does? When you had a perfectly legal route why take the risk? (that would be what I'd be asking myself).

You've been married 18 years. You have 2 kids. I have no doubt you would have no issues getting a visa... but.. I just don't think the smallest risk is worth it.

It would be SIGNIFICANTLY easier to remain in the US and apply for AOS. That's $1490 for filing fees, not including the medical she'll need. It will take 3-6 months (no idea of timelines at the moment). You will be interviewed (and your relationship would no doubt pass). I've been told intent was never questioned in those that did the same. But they married IN the US, didn't leave and didn't enter after 18 years marriage, 2 kids and obvious intent (being the letter).

Speak to a lawyer. Most will give a free consultation first. Most will give a free phone consultation. Ask them what they think. If they tell you "we can help you for $$" then ask them HOW they will help you. Ask them whether they think you'll have any problems. If they say "you'll be fine, you don't need a lawyer" then I would trust that person more than the $$ person because they're not gaining anything by telling you that. Then i'd call a few others for verification.

Your life, your wife's life, your kids lives... no mine. The risk is to you, your wife and kids. Not me. It's your choice. I just don't think the smallest risk is worth it, not when there is no doubt (in my mind) that you would be approved a spousal visa and that intent would never ever be a factor in that case.

**Edit - see this link: http://www.justice.gov/eoir/vll/intdec/vol17/2750.pdf See the #2 on the first page "Notwithstanding evidence establishing preconceived intent..." is what would concern me. Read the whole decision if you like. But i take that section to mean "if they have evidence, deny, if they don't, assumption isn't enough to deny if it's an immediate relative". Again, they have your letter, would they take that as evidence and deny?? That's the million dollar question.

GOOD LUCK!

Edited January 1, 2013 by Vanessa&Tony

[ceadsearc 516]

You'll probably be fine to AOS. Intent alone isn't used to deny. That being said, that does not mean coming with intent is legal or not fraud, and it doesn't mean the risk is zero. Both are probably low-risk scenarios for you but filing abroad is the lowest risk and, technically, the only truly "legal" path to follow. But again, in your situation, you would probably also be fine adjusting from within the US. You have to weigh the benefits and risks for yourself and decide what is best for your family.

[bigdog 376]

Good Luck with this process, let everyone know. how it goes.

[Dual National 0]

This conversation still presupposes there was some intent to deceive the immigration authorities. There obviously wasn't.

What I need to do is assess what exactly happened when my wife renewed her visa. If there was fine print in the document where my wife unwittingly attested to have no intention to move to the US -- after we had just informed the consulate in writing of the opposite -- then perhaps it would be best for her to start the process afresh out of the country. But I am not convinced of this yet. They renewed her 10-year visa with the full knowledge that we were planning to return to the US on a more permanent basis. It would be disingenuous to argue any unlawful intent on our part. The idea that there is any "fraud" is absolutely preposterous.

Nor could it be said that we had any plan to file a change of status. We did not even know that was possible. We hadn't even begun addressing the matter until a few days ago. All we knew is that her tourist via did not allow her to take up employment, or stay permanently. In our experience, obtaining a work visa after having a visitor's visa in most countries often requires leaving that country for awhile. We assumed there might be something similar in the US, and she anticipates leaving soon after I arrive. We never had any anxiety over her status in the US until now. Since she abides by her visa terms, she's as yet unemployed in the US and is focussed on the children, and because we still have our house overseas, it hardly seemed to matter.

In fact if applying for a change of status requires her to remain in the US while the application is processed, as one poster mentioned, then the whole point is moot. She still has obligations abroad that require her to travel this year.

I apologise if I seem testy. I appreciate everyone's comments. Being accused of fraud is outside my experience, though.

Edited January 1, 2013 by Dual National

[Hypnos 6,576]

AoS takes ~3 - 6 months, but she can apply for Advance Parole (using an I-131) which will give her permission to leave and re-enter the US while her AoS is pending. AP would probably be in her hands within three months of her applying for it.

[Chicagoguy 2 27]

You mentioned school for the children. You do not need to worry about this. They operate completely independent of most immigration laws. Where my daughter teaches in Tucson they are not even allowed to ask. It is residency they care about. Is someone paying taxes.

[Hypnos 6,576]

Their children are US citizens and so fully entitled to use the public school system (and probably could even if they weren't).

[pushbrk 12,975]

With all due respect to previous opinions expressed to the contrary, immigrant intent upon entry is not grounds (on its own) to deny an adjustment of status application properly made by the spouse of a US Citizen. An actual material misrepresentation upon entry WOULD be grounds to deny but it does not appear any such thing occurred.

I think you'll find that more than a hundred people in similar situations will have their status adjustment approved the same day yours is, should you decide to take that route. If you have remaining doubts, you can always consult a qualified immigration attorney.

[ceadsearc 516]

With all due respect to previous opinions expressed to the contrary, immigrant intent upon entry is not grounds (on its own) to deny an adjustment of status application properly made by the spouse of a US Citizen. An actual material misrepresentation upon entry WOULD be grounds to deny but it does not appear any such thing occurred.

I think you'll find that more than a hundred people in similar situations will have their status adjustment approved the same day yours is, should you decide to take that route. If you have remaining doubts, you can always consult a qualified immigration attorney.

I agree with this. However, in response to the OP, a tourist visa is ALWAYS a non-immigrant visa. The terms of the visa in and of itself are that you do not plan to use it to immigrate. Regardless of whether you told the consulate you planned to use it that way, or even if an immigration officer told you it was fine (seen that here plenty), the visa itself is a non-immigrant visa and using it with intent to immigrate is immigration fraud. It may not be intentional and it certainly sounds like you may have been ill-advised abroad, and you likely won't have any issue adjusting status here. But the reason people are throwing around intent and fraud is because, by law, the tourist visa is a non-immigrant visa and is never to be used to immigrate.

[VanessaTony 3,567]

In fact if applying for a change of status requires her to remain in the US while the application is processed, as one poster mentioned, then the whole point is moot. She still has obligations abroad that require her to travel this year.

She'd be "trapped" in the US until she gets advanced parole (AP), which takes around 2-3 months.

The intent thing has been discussed to death so I won't bother addressing it again in your thread but I will say, it's obvious you didn't intend to break the law because you didn't know the law existed. I think you just expected she could stay here (otherwise why would you have put the kids in school?). Give it a shot. Worst case scenario if her I-485 is denied is she's got to go back to the other country (and of course that'll cost money). Her I-130 would still be approved though so she'd have to get an interview for an IR-1 visa in that country and I've no doubt the visa would be approved because 18 years + living together overseas is great evidence.

She wouldn't face a lifetime ban or anything like that so if she can hang out in the US for 2-3 months to wait for AP give it a shot. It's just money and time. Even if she got a ban for lying (if that were even a factor here - really depends on what was said at the border) that would just cost money and time.

[Tosh Love 77]

Hello, this reply is strictly about enrolling your children in school and not about any visa of any kind.

You and your wife can give TEMPORARY guardianship to a trusted relative in the US, preferably in a school district with accreditation, and he/she can enroll them in school until you and your wife decide on a stable or permanent living arrangement. This does not mean that your children have to live with them throughout the duration of the guardianship. I don't know if this in option for your or not.

[pushbrk 12,975]

Two issues regarding travel. Vanessa is right that she would need to wait for advance parole to leave the country. Her current visa becomes invalid once she applies to adjust status. However, the second issue is that she MUST be available for the interview.