Preconceived Intent to marry and adjust status

[Teddy B 17,252]

This is not as straight forward as you say. a quick search brought up this experience

http://www.visajourney.com/forums/topic/437378-aos-and-preconceived-intent/#entry6314901

they were grilled heavily about intent at their interview. If you do some more searching you'ld probably come up with more.

I Have also spoken with two competent lawyers, both of wich said intent is a real issue.

I would imagine, like you said, at the end of the day you shouldn't leagally get denied. But it seems like some IO's might get you into trouble. You might have to go to a court to fight it.

Intent is certianly something anyone going through immigration must be prepared for. They have to be ready to explain and prove that there was no preconcieved intent.

In THEORY you are right. But unfortunately(maybe for some, fortunately) in practice it is not always so.

From the link you posted:

The story in brief ... I'm a US citizen (born in the US) but lived abroad (in Greece) most of my life. I met my husband three years ago, got engaged last year and got married November 1st, 2012. In October 2012 (just before our wedding) I got a job offer to move to NYC. We both arrived in the US on November 17th 2012 (my husband entered on a Visa Waiver) and filed for adjustment of status on November 29th.

Ofcourse this couple was grilled about intent, as well they should have. The husband filed for AOS 12 days after entering the country. But in the end, intent was not enough to deny the application. which is true to what the law states.

[f&c 50]

Here is a link that touches on the subject:

http://immigrationworkvisa.wordpress.com/2011/12/27/green-card-adjustment-san-diego-after-b2-entry/

[Boiler 45,520]

I am still waiting for a single case after 1987 where the denial is based on preconceived intent to marry and adjust status. Federal agencies are regulated by laws and their agents are trained to ensure that they do not breach the law. No immigration agent will deny a case which risks it being thrown out of court and squashed by an immigration judge for something that is clearly indicated in immigration statutes. It is time wasting and a waste of tax payers money and if you know one thing in America, tax payers money is not something to play with.

I have been asking this for years every time it comes up and I can be bothered to get involved.

Still waiting...........

[Boiler 45,520]

Here is a link that touches on the subject:

http://immigrationworkvisa.wordpress.com/2011/12/27/green-card-adjustment-san-diego-after-b2-entry/

That is frightening.

[f&c 50]

Here is a case dealing with VWP that was upheld:

http://cdn.ca9.uscourts.gov/datastore/opinions/2008/03/31/0755018.pdf

However:

The Ninth Circuit has held that adjustment of status cannot be sought after the 90-day ESTA window. Momeni v. Chertoff, 521 F.3d 1094 (9th Cir. Cal. 2008); see also Dehkordi v. Holder, 410 Fed. Appx. 34, 37 (9th Cir. 2010) (holding that because no application for adjustment was filed within the 90-day window, VWP entrant was not permitted to seek adjustment).

That would appear to be the end of the story except that its not.

Despite the clear Ninth Circuit precedent (holding that adjustment cannot be sought after the 90-day ESTA window), the immigration service has taken a more generous approach. But only informally. In a April 7, 2011 liaison meeting with the American Immigration Lawyers Association (AILA), U.S. Citizenship and Immigration Service (CIS) gave guidance on this issue. See AILA Doc. 11040735. Here is what CIS has said:

All field offices have been instructed to adjudicate I-485 applications filed by individuals who last entered the U.S. under the Visa Waiver Program (VWP) and overstayed on their merits UNLESS the potential beneficiary is the subject of an INA section 217 removal order. Additionally, field offices have been instructed to hold in abeyance all VWP adjustment applications for potential beneficiaries who have been ordered removed under INA section 217. We are drafting final guidance including an AFM update on this topic we expect to issue soon.

This informal guidance provides that unless the individual has been ordered removed, her adjustment application should be processed.

http://www.pugetsoundlegal.net/2013/07/09/i-came-to-the-u-s-on-esta-can-i-adjust-status/

[Boiler 45,520]

There was a lot of fuss on here at the the time, as you said it went away.

[christeen 966]

It just seems that anytime, regardless of the circumstances, anyone mentions adjusting status the VJ community starts crying fraud, lifetime ban etc... There is a loophole in the law and as long as it exists, it is legal for a couple who meet the criteria to use this method. Given the current situation of long separations of spouses and children, I can perfectly understand someone changing their minds once faced with the reality of the immigration process. But scaring the life out of them unnecessarily is a bit much and has really gotten out of hand IMO

[Hypnos 6,576]

- Entering the US on a nonimmigrant visa with the preconceived intent to remain is visa fraud.

- Intent alone cannot be used to deny an application for adjustment of status in the absence of other negative factors.

Both of these statements are true, and one should not be considered without the other. Some people like to read the first and forget the second, some people like to forget the first and read the second, but it's a package deal.

[ManCharsey 254]

That was exactly my point Christeen. I was just tired of seeing it being screamed out everywhere anytime someone talked about adjusting their status from a non-immigrant visa. Law only establishes what is legally right not what is morally right. As long as no laws are being broken, it is by law legally right and that is what adjudicators base their decisions on because if they go beyond the confines of the law it results in court cases and court cases are just expensive for federal agencies to waste their time on something they won't even win.

[Hypnos 6,576]

Something else to consider: visa fraud is a federal crime, with a punishment of up to ten years imprisonment for the first offence (more if drugs, terrorism, or other crimes are also included).

[ManCharsey 254]

Great point Hypnos. I personally believe in having a full understanding of a subject and having credible sources to support the arguments before I make comments about it. Looks like most people here don't. They just read the first point you maxed somewhere and start yelling it anytime someone rise to adjust status from a non-immigrant visa. Meanwhile nobody has been able to prove a single case since 1987 where preconceived intent to marry and immigrate was used as a basis to deny. The USCIS knows better than to flout legal statutes and whereas they might probe into the legality and bona fide nature of a relationship and also to establish that there hasn't been willful misrepresentation of facts - all of which factor in visa fraud, they CAN NOT deny based on preconceived intent alone. It is an immigration statute and It is available in USCIS publications.

[Hypnos 6,576]

My biggest beef is when people "investigate the possibility" before they enter the US. It's one thing to enter on a B-2, F-1, etc. and something happens (you meet someone, or your existing relationship turns into something more serious), but people who deliberately plan to manipulate the system leave a bad taste in my mouth.

Honestly, the whole issue of adjustment of status needs to be revisited at some point. Even in the Senate's version of their comprehensive immigration legislation passed last year, I don't think they touched on AoS at all. It needs to be something like precluding adjustment on a B-2, or perhaps any visa other than a K-1, I'm not sure. All I know is that, with all of the grey areas surrounding current adjustment laws and procedures, people are going to find loopholes to use, as they have done.

Edited January 17, 2014 by Hypnos

[christeen 966]

I agree with all above, As soon as people ask about AOS.. The first question is "are they currently here in the USA"? If they are, then AOS is a viable and legal option, but if they are not here yet, then they are premeditating and that constitutes fraud... But the deafening cries of "illegial", lifetime bans" and "fraud" from many members of this site at the very mention of AOS is so overblown... Fact is that under the current system there is the opportunity for couples to legally file for AOS and I feel like those who chose the traditional path of k1 or cr1 are way too quick to cry fraud and illegal without really knowing what the provisions of the law are...

[Ketsuban 1,034]

I remember reading something about people in San Diego being denied AOS due to pre-conceived intent but that it was found to be in breach of the law... or something. I'm too lazy to look it up at the moment.

Sometimes I wish I had stayed and adjusted, but I am extremely risk-averse so went back home to do the CR-1. On the plus side, it means I can save up my wages for a good while before I make the move. But damn, I do miss my husband. On bad days, I feel like I have willingly tossed away a year of our lives we could have been together.

[loladolly 51]

I remember reading something about people in San Diego being denied AOS due to pre-conceived intent but that it was found to be in breach of the law... or something. I'm too lazy to look it up at the moment.

Sometimes I wish I had stayed and adjusted, but I am extremely risk-averse so went back home to do the CR-1. On the plus side, it means I can save up my wages for a good while before I make the move. But damn, I do miss my husband. On bad days, I feel like I have willingly tossed away a year of our lives we could have been together.

I feel exactly like you... i did the K1 route and the whole process took almost 10 months. I am still waiting for the approval of my AOS. This is complete BS as we are doing it the way they want us to do it but we end up waiting a LOT longer than those who AOS on a non immigrant visa or VWP (who get their GC in less than 6 months while it took me more than that just to get to the US)... If i had to redo it would be a different story... and i don't give a damn about people's opinion! They can kiss my a..

Edited January 17, 2014 by loladolly