Intereresting Case

[goodguyblyth 0]

There is a lot of debate on here about the 30/60 day rule and I thought this attached case may spark some lively conversation. I would be interested in everyones take on this.

This is just for personal interest but it may be critical information for those Adjusting Status from a B2 visa. Please keep it nice. Everyone has a right to an opinion and I am fascinated to see a discussion of this.

Apr042011_11H5212.pdf

[slvrfx576 15]

Interesting read, but the decision was based on the the misrepresentation of intent made by the visa applicant, and not the 30/60 day rule.

[goodguyblyth 0]

Interesting read, but the decision was based on the the misrepresentation of intent made by the visa applicant, and not the 30/60 day rule.

Actually, I read it differently. It appears that the 30/60 day rule was indeed used and that the misrepresentation was at the port of entry and not during the visa application process. Here is a quote from the decision:

"Although the AAO is not bound by the Foreign Affairs Manual, reference to its provisions is informative in responding to counsel's assertions.

--snip--

The Department of State has developed the 30/60-day rule which applies when, "an alien states on his or her application for a B-2 visa, or informs an immigration officer at the port of entry, that the purpose of his or her visit is tourism, or to visit relatives, etc., and then violates such status by ... Marrying and takes [sic] up permanent residence." 9 FAM 40.63 N4.7-l(3).

In this case the record establishes that the applicant entered the United States on November 15,2005 as a visitor for pleasure. The applicant then married his current spouse on January I. 2006. 47 days later. If conduct occurs within 30 days of entry to the United States a presumption of misrepresentation arises. 9 FAM 40.63 N4.7-2. If conduct occurs within 60 days of entry a presumption of misrepresentation does not arise, but may be established based on facts leading to a reasonable belief the applicant misrepresented his or her intent. 9 FAM 40.63 N4.7-3."

[jordan85 8]

This is the most important part, I think..

"Further, the applicant has admitted that he did not inform the inspection agent of his intent to marry his spouse because he feared he would be denied entry. Testimony of the Applicant, July 17. 2009; Statement of the Applicant. dated September 12, 2009"

So he already had the intent to marry his fiancé during this visit, and didn't disclose this on entry to the US because he knew it would arouse suspicion of immigrant intent. Clear and simple, he lied, and later stated his lie was to evade immigration laws. Entered with a nonimmigrant visa with immigrant intent (by applying for AOS).

Edited October 9, 2013 by jordan85

[Xanax 349]

From my understanding the reason for denial was misrepresentation not the 30/60 day rule.

[EM_Vandaveer 2,408]

As you can see in my signature I got married 11 days after entry. There was no intent to AOS at the time nor did it cause a problem later.

[mrjack 9]

I think a couple of you are misreading this or maybe I am.

"Further, the applicant has admitted that he did not inform the inspection agent of his intent to marry his spouse because he feared he would be denied entry. Testimony of the Applicant, July 17. 2009; Statement of the Applicant. dated September 12, 2009"

He didn't lie. He omitted information. I'm reading that he didn't volunteer the fact he was engaged to the inspection agent. It says the word omission several times in the proceeding but not once does it say that he was specifically asked if he had a fiance. Instead this statement:

About the 30/60 rule, The proceedings specifically brings up it up and says the marriage occurred within the 60 days time frame

Here is how it is cited:

First the facts of the case: In this case the record establishes that the applicant entered the United States on November 15,2005. as a visitor for pleasure. The applicant then married his current spouse on January I. 2006. 47 days later.

Next the rule violated is cited: If conduct occurs within 60 days of entry a presumption of misrepresentation does not arise, but may be established based on facts leading to a reasonable belief the applicant misrepresented his or her intent. 9 FAM 40.63 N4.7-3.

Next the material misrepresentation is defined:

A misrepresentation is material if either: (1) The alien is excludable on the true facts; or (2) The misrepresentation tends to shut off a line of inquiry that is relevant to the alien's eligibility and that might well have resulted in a proper determination that he be excluded.

Next facts that show a material misrepresentation was made:

In this case the applicant failed to reveal that he was engaged to a Lawful Permanent Resident of the United States and that he was going to be married in the United States on January 1, 2006. These facts directly contradict his assertion to the inspection officer that he was merely entering the United States as a visitor. Had the inspecting officer known that the applicant was engaged to a lawful permanent resident, he could have pursued the material line of inquiry regarding whether the applicant intended to marry and remain in the U.S. - an intent not permitted in temporary B nonimmigrant status. As such, his failure to reveal his engagement and marital plans constitutes a material misrepresentation, as it shut off a line of inquiry that was relevant to his eligibility for B nonimmigrant status.

It's clear that they are saying that since he didn't say the true nature of his trip to the US that he was making a misrepresentation. His omission, not a lie, was the misrepresentation. In fact nowhere in the entire proceedings does it say he lied. He just didn't volunteer the information to the inspection agent. I suspect the inspection agent asked him: "What's your purpose in coming to the US?" And he responded something like: "Just visiting."

I wonder how many here have done that when they entered with the intent to get married?

I suspect that if he had waited more than 60 days to get married that he wouldn't have had this problem. I also suspect that part of his problem was a difficult interviewing officer.

[Harpa Timsah 13,258]

It says right on there: "Although the AAO is not bound by the Foreign Affairs Manual, reference to its provisions is

informative in responding to counsel's assertions." (emphasis mine)

[edindzeko 0]

"As such, his failure to reveal his engagement and marital plans constitutes a material misrepresentation" - but how come he was different from all the others who didn't share information at POE, yet successfully adjusted while in the US?

and..

"an alien states on his or her application for a B-2 visa, or informs an immigration officer at the port of entry, that the purpose of his or her visit is tourism, or to visit relatives, etc., and then violates such status by ... Marrying and takes [sic] up permanent residence." 9 FAM 40.63 N4.7-l(3). - OK. So what's different from this person's case than the thousands of others who do it? I understand he violates his visa by seeking to take up permanent residence BUT.. how come he was denied/caught? Some have done it even before the 30/60 day rule (if that truly exists) and they were fine. Lastly, what if he simply said he had no intention to marry/stay yet spontaneously decided to stay due to the new circumstances. I can only assume he did horribly/looked suspicious at the interview.