When is non-immigration intent established?

[brightsunshine 0]

First post. First of all thanks for all the information!

I'm currently on F-1 student visa studying for my PhD. My boy (USC) and I would like to get married this summer, and I gather from reading this site that I should probably adjust my status afterwards.

The trouble is that I have a trip home planned for spring break (end of March), and I've read that entering the US with an F-1 visa with a plan to adjust status is problematic. When I applied for the visa (November 2005) I certainly had no plans to get married or adjust status. I have been continuously enrolled and will be after AOS is filed until I graduate. So would I run into problems with my AOS because the non-immigration intent is re-established every time I enter the US? Or is it only when I applied for the visa?

I have read about the 30/60 day rule, and probably won't file for AOS until >60 days after I return to the US, but I am just worried about the interview - if they asked me when we had planned to get married and compare it to the last date of entry, and I tell them the truth (I am a terrible liar), would it be a problem?

I'm trying to decide if I should cancel my trip home to be on the safe side.

Your thoughts appreciated.

thanks,

sunshine

Edited March 2, 2007 by brightsunshine

[John & Annie 0]

First post. First of all thanks for all the information!

I'm currently on F-1 student visa studying for my PhD. My boy (USC) and I would like to get married this summer, and I gather from reading this site that I should probably adjust my status afterwards.

The trouble is that I have a trip home planned for spring break (end of March), and I've read that entering the US with an F-1 visa with a plan to adjust status is problematic. When I applied for the visa (November 2005) I certainly had no plans to get married or adjust status. I have been continuously enrolled and will be after AOS is filed until I graduate. So would I run into problems with my AOS because the non-immigration intent is re-established every time I enter the US? Or is it only when I applied for the visa?

I have read about the 30/60 day rule, and probably won't file for AOS until >60 days after I return to the US, but I am just worried about the interview - if they asked me when we had planned to get married and compare it to the last date of entry, and I tell them the truth (I am a terrible liar), would it be a problem?

I'm trying to decide if I should cancel my trip home to be on the safe side.

Your thoughts appreciated.

thanks,

sunshine

Thank you for your respect of the law. I understand your dilemma and I am not really sure what I would do where I in your shoes.

This should be an interesting discussion.

[Kez/JWolf 6]

Your intent at POE is what they will look at.... If at your last entry you knew nothing about getting married and then doing AOS you would be ok to do AOS....

If you go home in the spring and then come back into the US knowing that you intend to marry are file for AOS then you would have intent....

If I were you I would reschedule my trip home until later in the year, after you are married and have filed for AOS and have got your AP...

There is no point in making thing more complicated than they need to be...

Kez

Edited March 2, 2007 by Niagaenola

[brightsunshine 0]

Thank you for your respect of the law. I understand your dilemma and I am not really sure what I would do where I in your shoes.

This should be an interesting discussion.

Thanks. The thing is, I'm not trying to circumvent any visa rules. I simply cannot stay outside of the US to wait for the K-1 since I'm in school. So part of me feels like that should be ok. But another part of me suspects that logic is not always used in applying immigration rules.

Edited March 2, 2007 by brightsunshine

[brightsunshine 0]

I found this on a lawyer's website: http://www.hooyou.com/f-1/140filing.htm

"In the case Brownell v. Carija , the court held that an alien who originally entered under a non-immigrant visa can have a "desire or purpose or intent" to remain in the U.S. if the law affords him such an opportunity. Furthermore, a non-immigrant visa applicant's desire to remain must be distinguished from his or her intent to remain. In the case Lauvick v. INS , the 9th circuit judge reversed the denial of E-2 for an applicant who expressed desire to immigrate but did not intend to immigrate if not permitted. In a 1975 case, the Board of Immigration Appeals held that a foreign student's attempt to adjust status did not automatically make him deportable and cited a line of holdings to the effect that "a desire to remain in this country permanently in accordance with the law, should the opportunity to so present itself, is not necessarily inconsistent with lawful nonimmigrant status." These cases that differentiate desire from intent have never been explicitly over-ruled, and immigration attorneys still cite them as classic sources for the doctrine of "justifiable intent."

Therefore, the immigrant intent is arguably the intent to remain in the US without lawful permission after his or her status expires whereas the immigrant desire is to stay in the US if the law affords him to do so."

I am really torn because I would really like to go home to tutor my younger brother, who has a big exam coming up in April....

[lostinblue 1,989]

You are also intending on using the f-1 legally.Many people have 2nd thoughts about getting married , So why the rush to get married . Just make a decision as to getting married after you return . I can see if you have a paper trail IE deposit in wedding dress then it could come back to haunt you . Maybe many people will disagree with me . Where is the point that you say I would like to marry and I will marry. What if you had second thoughts about getting married . Does this mean you are willing to quit school before you decide. You are here in a legal visa. purpose for entering poe.... school. just put off that decision until you return to the us.If you wait the alloted time where is the problem. It sounds like you have been in the us for a while. I can see where many people use a visitors visa to get aroung the law for a K visa but you are using the f visa to do what the intent is for school. just postpone the decision about getting married until you return.I cannot see where you would break any laws.

[payxibka 10,045]

You are also intending on using the f-1 legally.Many people have 2nd thoughts about getting married , So why the rush to get married . Just make a decision as to getting married after you return . I can see if you have a paper trail IE deposit in wedding dress then it could come back to haunt you . Maybe many people will disagree with me . Where is the point that you say I would like to marry and I will marry. What if you had second thoughts about getting married . Does this mean you are willing to quit school before you decide. You are here in a legal visa. purpose for entering poe.... school. just put off that decision until you return to the us.If you wait the alloted time where is the problem. It sounds like you have been in the us for a while. I can see where many people use a visitors visa to get aroung the law for a K visa but you are using the f visa to do what the intent is for school. just postpone the decision about getting married until you return.I cannot see where you would break any laws.

I don't think there is any requirement for you to reside outside the US while your K-1 petition is being processed either, just need to be there for interiew... just my thought...

[brightsunshine 0]

You are also intending on using the f-1 legally.Many people have 2nd thoughts about getting married , So why the rush to get married . Just make a decision as to getting married after you return . I can see if you have a paper trail IE deposit in wedding dress then it could come back to haunt you . Maybe many people will disagree with me . Where is the point that you say I would like to marry and I will marry. What if you had second thoughts about getting married . Does this mean you are willing to quit school before you decide. You are here in a legal visa. purpose for entering poe.... school. just put off that decision until you return to the us.If you wait the alloted time where is the problem. It sounds like you have been in the us for a while. I can see where many people use a visitors visa to get aroung the law for a K visa but you are using the f visa to do what the intent is for school. just postpone the decision about getting married until you return.I cannot see where you would break any laws.

That is true, we haven't made any concrete plans yet - no date or dress or rings (I don't believe in diamonds or jewelry...). School is definitely the primary reason for me to enter the US, because for me getting my PhD is definitely more important than staying in the US, and I will not quit for any reason. I guess I can always say that we wanted to get married, but haven't made any plans until after I return? (Which is true.)

I don't think there is any requirement for you to reside outside the US while your K-1 petition is being processed either, just need to be there for interiew... just my thought...

Hmmm... Maybe I'll look into this some more. I guess it will cost more (plane ticket to interview, plus still have to do AOS).

Thanks all for the replies!

[lostinblue 1,989]

You are also intending on using the f-1 legally.Many people have 2nd thoughts about getting married , So why the rush to get married . Just make a decision as to getting married after you return . I can see if you have a paper trail IE deposit in wedding dress then it could come back to haunt you . Maybe many people will disagree with me . Where is the point that you say I would like to marry and I will marry. What if you had second thoughts about getting married . Does this mean you are willing to quit school before you decide. You are here in a legal visa. purpose for entering poe.... school. just put off that decision until you return to the us.If you wait the alloted time where is the problem. It sounds like you have been in the us for a while. I can see where many people use a visitors visa to get aroung the law for a K visa but you are using the f visa to do what the intent is for school. just postpone the decision about getting married until you return.I cannot see where you would break any laws.

I don't think there is any requirement for you to reside outside the US while your K-1 petition is being processed either, just need to be there for interiew... just my thought...

They would stop her at the border if she sais she was coming to get married. I had an immigration attorny once tell me that when my ex girlfriend crossed the border from canada to say she was just coming to see a friend not a fiance. As no papers had been filed no problem and she was established in canada IE job, property If she said fiance then she would never get in.to visit.

[Nancy2015 2]

I would rather wait to travel outside the US if you are planning to get married. They probably won't ask any questions about your personal plans at the POE when you re-enter with a valid F-1, and they will certainly let you in, but it is not 100% safe, and moreover, it is not right to do that. If you already know you're getting married and filing AOS, don't travel with an F-1.

However, if you were planning to get married and then move to your country, it would be perfectly fine to travel with your F-1. It's not the marriage that matters, it's your intent to file AOS.

[brightsunshine 0]

I would rather wait to travel outside the US if you are planning to get married. They probably won't ask any questions about your personal plans at the POE when you re-enter with a valid F-1, and they will certainly let you in, but it is not 100% safe, and moreover, it is not right to do that. If you already know you're getting married and filing AOS, don't travel with an F-1.

However, if you were planning to get married and then move to your country, it would be perfectly fine to travel with your F-1. It's not the marriage that matters, it's your intent to file AOS.

I agree that it is not 100% safe, but is it really "not right"? From the above link (citing matter of Hosseinpour I believe), the court seems to rule that "a desire to remain in this country permanently in accordance with the law, should the opportunity to so present itself, is not necessarily inconsistent with lawful nonimmigrant status". (Of course whether the immigration officer adjudicating my AOS case knows or cares about case law is a separate issue.) If this is "not right", what is someone in my position to do if, hypothetically, there is an urgent need to travel (e.g. death in the family)?

I also wonder if there is a concept of "primary purpose" for the visit.

Just wondering out loud - has any one adjusting from F-1 or J-1 been asked about their most recent entry?

[Nancy2015 2]

I agree that it is not 100% safe, but is it really "not right"? From the above link (citing matter of Hosseinpour I believe), the court seems to rule that "a desire to remain in this country permanently in accordance with the law, should the opportunity to so present itself, is not necessarily inconsistent with lawful nonimmigrant status". (Of course whether the immigration officer adjudicating my AOS case knows or cares about case law is a separate issue.) If this is "not right", what is someone in my position to do if, hypothetically, there is an urgent need to travel (e.g. death in the family)?

I also wonder if there is a concept of "primary purpose" for the visit.

Just wondering out loud - has any one adjusting from F-1 or J-1 been asked about their most recent entry?

Immigration Officers are not very sophisticated people, and they normally don't know squat about the case law. They do everything by the book.

Lots of people travel with an F-1 visa - enter and re-enter numerous times when they are already engaged and sometimes even married to USC's. Nothing usually happens to them. However, this doesn't make it right. Non-immigrant intent is established each time at the POE, and if you enter the country knowing that a couple months from now you will apply for AOS, it's just not the right thing to do. I would strongly advise everyone against travelling with an F-1 visa if they have plans to immigrate to the US.

[brightsunshine 0]

Immigration Officers are not very sophisticated people, and they normally don't know squat about the case law. They do everything by the book.

Lots of people travel with an F-1 visa - enter and re-enter numerous times when they are already engaged and sometimes even married to USC's. Nothing usually happens to them. However, this doesn't make it right. Non-immigrant intent is established each time at the POE, and if you enter the country knowing that a couple months from now you will apply for AOS, it's just not the right thing to do. I would strongly advise everyone against travelling with an F-1 visa if they have plans to immigrate to the US.

Not to get too personal, Jewel, but I wonder why you feel so strongly that this is "not right" if you had yourself married shortly after entering as a student? (If you don't mind me asking - how quickly?) In a previous post you wrote:

I had expected questions about... our quick marriage after my first (and only) entry as a student, and stuff like that.

The "by the book" part is exactly what I'm trying to figure out. I would like to know if the "book" says that if one has a primary intent and activity (in this case, study) consistent with one's visa, whether a desire (to use the term from the above-cited website, i.e. to do so only when afforded by law, not to circumvent any visa rules) to immigrate is in fact against the rules. Although, I agree with you that in practice, it's always at the discretion of the immigration officer.

Edited March 3, 2007 by brightsunshine

[ardilla 0]

My husband entered on an F1 and entered and exited the US three times over a period of four years on his F1. Then about 6 months before we got married he and I consulted with an immigration attorney that had a lot of experience working with students in university settings (he used to work for our local state university as immigration cousnsel for the international students office). He listened to us explain to him that we were planning to marry in August and that we were planning a trip back to my then fiances home country in April, and told us flat out to not do this because my husband could (he said would) have problems adjusting status.

We took his advice, which was sad for my husband at the time because he wanted to go home to celebrate his mother's 80th birthday.

I can tell you that when we went to our AOS interview, the officer asked my husband several times how many times he entered the US, how long he stayed each time, when was the last time he entered, (he asked this twice and then asked if we were sure) and when did we get married, and then he corroborated this by examining the date stamps in hubby's passports and his I94 and the date on the marriage certificate.

I am very relieved that we listened to that lawyer and postponed our trip!

I agree with Jewel12

[Dr_LHA 3]

brightsunshite: Be careful about quoting some random legal ruling and using it to justify what you want to do. That way lies madness, unless you yourself are a lawyer. The facts are as follows, you are not allowed to have immigration intent when re-entering the USA on an F-1 visa. If you plan to file AOS, you have immigration intent. Immigration intent is establiished at the border, but can also be determined by your interviewing officer when you file for AOS. Its unlikely that a CBP would ask you about immigration intent when you arrive on an F-1, but if you arrive on an F-1 and immidiately get married and file AOS, red flags will pop up at USCIS.

Jewel and others here are giving you good advice. Don't bite the hand that feeds because you don't like what they're saying. If you don't travel you most likely will have a painless and legal AOS. If you do you introduce the possibility of denial and deportation. Its most likely a slim chance, but why take such chances on your future?