When is non-immigration intent established?

[MPGGPM 0]

I applied for a IR-1 on behalf of my wife. During the process, she came to the USA for a short time on her F-1.

This is interesting. By having an IR-1 filed, isn't immigration intent apparent? And if entering the country on F-1 (re)declares non-immigration intent, then wouldn't she have declared non-immigration intent after establishing immigration intent?

But, she's just as eligible to continue to enter with the F-1, just as people who have filed K-1, K-3, CR-1's etc.......are eligible to enter the USA with a "tourist visa", which is also a non-immigrant visa.

If this is true, then either

1) There is no declaration of non-immigrant intent solely from using F1/B1/B2 to enter the country.

OR

2) There is no problem with having established immigration intent when using F1/B1/B2, if the primary purpose of the trip is consistent with what the visa is issued for.

Either of the scenario contradicts what dr_lha, Jewel12, LisaD, etc are claiming.

Unless, of course, that filing I-130 doesn't establish immigration intent. In which case, I'm thoroughly confused.

There is one BIG difference between what my wife is doing and what you are planning. And that is...........she is not, nor will ever have any intent to REMAIN and try to do AOS from here. She is going to receive the immigrant visa overseas.

The problem with what you are trying to do, is you plan to REMAIN after you have entered with an F-1, and while knowing full well you will do AOS here.

Immigration is not so much concerned with a person having immigrant intent as much as the WAY they go about doing things. Your way....is not permitted under their regulations (or is frowned upon...and can lead to trouble).

You are focusing on the term "immigrant" intent, when what you should be focusing on is how you plan to do things.

If having "immigrant" intent were the real issue, then NO ONE could ever come to the USA to visit on a tourist visa, or the visa waiver program....after marriage, to visit their spouse while awaiting their visa.( k-1, k-3 etc..) They would ALL be denied entry at the border or POE.

The difference is, they are allowed to enter even WITH immigrant intent, because they are promising not to remain. They are just visiting. Thats the key.....

When you return with your F-1, you intend to REMAIN.....and do AOS here. (with full knowledge ahead of time , of this plan) You are not supposed to do that, and are supposed to go back overseas and wait for your k-3, etc.....

Edited March 4, 2007 by MPGGPM

[rebeccajo 14]

Why do people get balled up over the fact that its often times just as LEGAL for USCIS to deny a case as it is for the immigrant to LEGALLY bend the rules of immigration to the edge of that legality?

[Dr_LHA 3]

I applied for a IR-1 on behalf of my wife. During the process, she came to the USA for a short time on her F-1.

This is interesting. By having an IR-1 filed, isn't immigration intent apparent? And if entering the country on F-1 (re)declares non-immigration intent, then wouldn't she have declared non-immigration intent after establishing immigration intent?

Intent is only important if you intend to stay when entering. Having a IR-1 filed means that you are getting the proper visa sorted out. You can visit all you like while this is processing because at no point are you entering with intent to remain, just because at some point in the future you intent to immigrate doesn't mean you can't visit beforehand.

Unless, of course, that filing I-130 doesn't establish immigration intent. In which case, I'm thoroughly confused.

Prepare to be confused. Filing I-130 doesn't establish immigration intent.

To finish this thread: just do what you like. If you feel hard done by, go ahead, break the law. Face the consequences (which will probably be nothing, in fairness). You came here for advice, not an argument surely? If you don't like that advice, tough #######.

Edited March 4, 2007 by dr_lha

[MPGGPM 0]

To Brightsunshine,

I think what most people are trying to tell you (some more ...umm..."bluntly" ... than others...), is that what you are planning and might be attempting to do is risky. I think all we can do is tell you the facts as we know them, and then from there , the decision is yours.

Can you do what you are thinking of (leaving the USA on a student visa...and then knowingly come back all the while planning to do AOS)......and get away with it? Possibly....

I really have no idea what the exact numbers/odds would be on success of doing such a thing. I would imagine you are not the first to try, and won't be the last. And, perhaps you will succeed.

But as you can see from that one link that I provided you, where that woman was advised by her lawyer to enter on the tourist visa, marry and then do AOS......it can backfire, and in the end , cost you twice as much money and time than if you did things the way US Immigration expects you to.

I do know what you are planning is risky..............and I think all we can do is inform you of that risk. If after everything you've read, you still insist on taking that chance, then it's up to you.

I personally don't find your questions inappropriate. I think you're just trying to understand the system and get information. 2 years ago, when I started this whole immigration process, I felt just as confused as you. It can be quite confusing and overwhelming............

I still feel you should remain....not leave ....and do AOS while here, and while you have a very good chance of convincing USCIS that your plan to do so was unintentional. But, if you leave.....I feel it will be hard to convince them. And if they at all feel you planned it when you entered again on the F-1, then you will most likely find your application being denied, and find yourself being told at the interview that you will have to go back overseas, and file an I-130 (a similar scenerio to that link I gave you, regarding that woman on the tourist visa) . And being that you are from China, from everything I have heard about the immigration procedure from that country, the amount of time it takes is lengthy.

But if you stay...you avoid all that hassle.

It may not be what you "want" to do....but then again, most of us have been placed in that position by this system. A lot of us have had to make sacrifices and changes to our way of life, and give up some freedoms, to get through this process. You are so fortunate to be in a position where most people here are not. In that you are here ALREADY......and are able to be together with your spouse.....and can stay and do AOS from here. I find it hard to see why you'd want to risk giving all of that up. You're at an advantage now, that many of us weren't able to be in.

By leaving the USA...you place all that in jeopardy.

Having spent nearly 2 years apart from my wife already, and knowing firsthand what a lengthy separation can be like , I really don't know why'd you'd ever want to place yourself in such a position.....and face that risk.

Edited March 4, 2007 by MPGGPM

[Caladan 19]

brightsunshine, think of it like this, it'll help you get the difference about intent. Intent "resets" with every visit.

When you enter on the F-1, your implicit contract is this: "Hi! I'm here primarily to study. I can do other things, too, as long as I stay enrolled. Like tourism. Or getting married. After I am done studying, I will leave the U.S."

If you were to enter on an F-1 with the intent to adjust status (judged as Jewel indicated) and stay, you'd be violating that implicit part of the contract. If you enter on the F-1, get married, leave, and come back on a spousal visa, even though in your head, your goal is to stay in the U.S., you've fulfilled the terms of the F-1 by leaving the country and coming back on a new visa.

Similar example. My fiancé visited me over New Year's. He didn't have his K-1 yet, so he entered like Canadians normally do on the VWP, which says for Canadians, you can visit, but have to leave within six months. Now, obviously, we had a K-1 processing. He had long-term immigrant intent, but his intent *for that trip* was to visit for two weeks and come home. He did that, so his intent for that trip was fine, even though his intent long-term is to move here.

[lostinblue 1,989]

Spend the 50-100 dollars and get legal advice,The big question is how do you prove intent.At what point can you prove intent. In the eyes of the law. You have an f-1 visa that is legal to use at the present time. You are stilled enrolled in school and still will continue to study. You are using that visa for the intent of which it was granted. . It is not like someone is in school for one month and gets married and drops out of school. On a f-1 visa. Where does the intent to go to school and the intent to get married override each other. There are a lot of opinions on this board from one side to the other. I believe you are in a grey area that only a professional can help with.NOT a bunch of layman.

[Dr_LHA 3]

Lostinblue: Its pretty simple. You can't immigrate on a non-immigrant visa, unless its a spur of the moment thing (i.e. you decided to get married since you last entered) or it allows for dual-intent (e.g. H-1B, L-1, *not* F-1). Immigration intent is not allowed on a non-immigrant visa, the law is clear. If the OP were to tell the CBP officer that (s)he was intending to marry and file AOS while entering the USA on a F-1, deportation would be the result.

This idea you have about "intent to go to school" overriding "intent to immigrate" is laughable, frankly.

The only grey area is whether or not the OP can get away with it. Chances are that they can, but is the small chance that they will get caught. The question is, is that worth it. IMHO: No.

Edited March 4, 2007 by dr_lha

[lostinblue 1,989]

Lostinblue: Its pretty simple. You can't immigrate on a non-immigrant visa, unless its a spur of the moment thing (i.e. you decided to get married since you last entered) or it allows for dual-intent (e.g. H-1B, L-1, *not* F-1). Immigration intent is not allowed on a non-immigrant visa, the law is clear. If the OP were to tell the CBP officer that (s)he was intending to marry and file AOS while entering the USA on a F-1, deportation would be the result.

This idea you have about "intent to go to school" overriding "intent to immigrate" is laughable, frankly.

The only grey area is whether or not the OP can get away with it. Chances are that they can, but is the small chance that they will get caught. The question is, is that worth it. IMHO: No.

It is very clear that she is using her f-1 visa as it was intended school and she is not using that just to get around immigration law, She is enrolled in a credited school. and has been for some time. She will continue to go to school. You are saying that at some point in time she would like to get married so she should be deported. that is laughable You would be sending half the students here in the us on a f-1 visa home Rather than us layman debate this let a good lawyer advise her. I am certain this has been introduced before a court before and there is many case studies on this subject.

[Dr_LHA 3]

You are saying that at some point in time she would like to get married so she should be deported.

Wow. You have no idea what I just said do you?

Look: Its fine to come to the USA on an F-1, fall in love, get married and file AOS. No legal issues there at all.

What isn't fine is entering the USA on an F-1 knowing you're going to file AOS. That's called immigration intent, and if you get caught doing it by a CBP officer you'll get deported.

Really simple.

Edited March 5, 2007 by dr_lha

[MPGGPM 0]

Brightsunshine

This link below is an interesting read. It's from law firm's website. I would "especially" read what it has to say in section #3.

Mind you, it is just from one website, and is not the definitive word, but is still worth reading.

It basically goes into what most people have said in more detail. It does not necessarily mean that if you left on the F-1, returned ......that you'd have no chance to do the AOS .

However, if you ever attempted such a thing (before the marriage, which appears to be your intention)...I would advise you to perhaps wait even longer than summertime to get married.........which in my opinion would still be relatively soon after a late March trip.......and when you consider you may have questions at an AOS interview where you will have to convince them that 3-4 months later after your re-entry into the USA, you had "no" idea at all that the marriage, just a few months later, would take place. Still seems quite soon after re-entry to me.......for you to convince them that you were unaware of it all, .......that the marriage offer would come, and that everything was unplanned ahead of time and was "spur of the moment". Were it me...I'd wait longer to marry after the re-entry.

Then again, as I stated before, were it me....I would never leave at all...and take the chance, to begin with.

In either case, I think you'll find the link below interesting.

http://www.hooyou.com/f-1/140filing.htm

[Dr_LHA 3]

Thanks for that link MPGGPM, its a good find. So now we have a clear explanation of the problem of re-entering the USA with immigration intent on a F-1 from the website of an immigration lawyer, that basically backs up what everyone has been saying.

[brightsunshine 0]

http://www.hooyou.com/f-1/140filing.htm

This was the website I pointed to in post #5 of this thread. In particular, they wrote:

4. The Difference Between Immigrant Intent and Immigrant Desire

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.

(Emphasis mine.)

This is what caused me to ponder the difference between using a visa for its purpose plus filing AOS and using a visa for the primary purpose of entry and then adjusting status.

Thanks MPGGPM for sharing your experience, expressing your concern, and for not getting offended by my questions. I appreciate it very much. And also thanks to everyone who contributed. I think I'm going to call up a few lawyers and also the USCIS hotline tomorrow and will report on what they say.

------------------------

PS:

So I can talk to the lawyers knowledgeably, I also poured over the actual laws governing AOS, 8 CFR PART 245, which is available on the USCIS website. I noticed this part under the list of people ineligible to adjust:

245.1 ( B ) (10) Any alien who was ever employed in the United States without the authorization of the Service or who has otherwise at any time violated the terms of his or her admission to the United States as a nonimmigrant, except an alien who is an immediate relative as defined in section 201 ( B ) of the Act

There is also a blanket exclusion for those who are "inadmissible", e.g. if someone makes a "material misrepresentation" to obtain a visa or entry, in INA 212(a)(6)( C ). According to the U.S. Department of State Foreign Affairs Manual. http://foia.state.gov/masterdocs/09fam/0940063N.pdf,

Silence or the failure to volunteer information does not in itself constitute a misrepresentation for the

purposes of INA 212(a)(6)( C )(i).

A misrepresentation made in connection with an application for a visa or other documents, or with entry into the United States, 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 which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he be excluded.

I will refrain from making more comments or interpretations, lest certain members of the group start jumping up and down and yell at me again. I just thought I would repeat the letters of the law and rules here in case anyone following is interested.

Edited March 5, 2007 by brightsunshine

[Dr_LHA 3]

Out of interest, what do you think that paragraph you quoted means? It seems to me that its simply defining the different between intent and desire. Desire is OK (desire being for example saying "I'd love to live here"), but if you leave the US and return to file AOS, you have intent (meaning you intend to remain, despite the fact that you are not allowed to when entering on a non-immigrant visa). As far as I can see it has no relevance to what we're talking about here.

The 2nd quote is simply saying you are forgiven for illegal work when you file for AOS based on marriage to a USC. Not sure how that is relevant to your situation either.

Quoting from the State department is irrelevant, they don't hand out Green Cards, only visas.

I'm glad you're going to talk to some lawyer, because you need to. By reading all this legal jargon you've confused things too much for yourself, when the reality is very simple. In my experience of being here on this site for a while, its always the people who start quoting legal jargon who are the most wrong, because unless you understand how the law is written you are bound to misinterpret it.

The lawyer will hopefully set you straight. Good luck with that. Sorry if it sounds like I'm giving you a hard time here, but I'm just trying to make sure you don't screw up your future by doing something easily avoidable.

[Kez/JWolf 6]

IMO the simple answer to your problem is just dont take the trip you have planed until after you are married and have AP or Greencard.... then you will have no issue...

But it looks like you are desperate to find something that will allow you to do everything you want... well happy hunting but remember that we all have to make sacrifices in this immigration game... we cant all have everything we want when we want it....

Kez

[notrepetiteashley 0]

"If having "immigrant" intent were the real issue, then NO ONE could ever come to the USA to visit on a tourist visa, or the visa waiver program....after marriage, to visit their spouse while awaiting their visa.( k-1, k-3 etc..) They would ALL be denied entry at the border or POE.

The difference is, they are allowed to enter even WITH immigrant intent, because they are promising not to remain. They are just visiting. Thats the key.....

When you return with your F-1, you intend to REMAIN.....and do AOS here. (with full knowledge ahead of time , of this plan) You are not supposed to do that, and are supposed to go back overseas and wait for your k-3, etc..... "

Exactly.

Also...I think it really comes down to one person's interpretation of the law on a very specific day: The officer that allows or denies your entry into the US. And maybe even the adjudicating officer at your AOS. Interpretations can vary and it is frustrating sometimes that there doesn't seem to be a set rule that *everyone* sticks to, if you know what I mean.

If I were you (and I know many share this opinion), I would do things to the letter of the law. It may put your personal plans in a bind, but trust me, it isn't worth the risk of not successfully completing AOS and getting married, etc. Check out my timeline to see how messed up a case can get. Being separated from your new husband because you didn't understand the law sucks. You seem to have a pretty good eye for research and I think you should do what you know is right in your heart. Good luck, my friend.

Also: Since when has Canada been part of the VWP???? Is this a new development? Last time I checked (which was in 2005) they were not.

Also2: Jewel, Immigration officers aren't sophisticated!??? That makes me chuckle just a bit to myself. I can't say I totally agree with that, though.