When is non-immigration intent established?

[brightsunshine 0]

I called the USCIS (twice), gave the background info, and asked, point blank, "if I return from my trip with an F-1, knowing that I may be getting married and filing for permanent resident, will it pose a problem later for adjustment of status?" I was told no (twice).

Lawyers have been contacted.

Further searches reveal two relevant cases in the Board of Immigration Appeals (BIA) decisions:

http://www.usdoj.gov/eoir/vll/intdec/vol17/2750.pdf

http://www.usdoj.gov/eoir/vll/intdec/vol18/2866.pdf

The gist of these decisions is that "intent on the part of a nonimmigrant to circumvent the normal visa process, i.e. a preconceived intent to remain permanently at the time of entry as a nonimmigrant" is exactly like "working without authorization", i.e. both are against the rules, but forgiven (only) in the case of immediate relatives of a USC. The comparison is directly made on page 3 of the second decision. Both constitute "violat[ing] the terms of his or her admission to the United States as a nonimmigrant" but are not bars for AOS for immediate relatives, as cited in the code 8 CFR PART 245.1 ( B ) (10) quoted in post #42.

So in effect, the law affords someone who has these immigration infractions - entering with preconceived intent, or working without authorization - to remain, if they are immediate relatives of US citizens.

I understand that many are emotionally invested in their immigration process, and understandably so. I respect all the sacrifices made, and hope that people do not confuse a insistence on facts and details for a need for reassurance. I wish some could recognize and respect that different people have different priorities - some would rather go without than work without authorization, for example. So long as the decisions made are properly informed, I don't see a need to jump on people.

I fully understand that laws notwithstanding, behaviors of adjudicating officers can be erratic and unpredictable. I fully agree with all of you that said (for the purpose of the green card) the safest thing to do is to not travel, and appreciate all the good will that came with that advice. However, I cannot agree that doing so is "fraud", unless an actual misrepresentation is made.

[Kez/JWolf 6]

You came here and asked for our advice..... we gave it.... it was not what you wanted to hear... so you went off and did some more research and found evidence of people who went to the appeals court and won their case.... You spoke to the 0800 info line and they confirmed that you are ok to do what you planned... I hope you are aware that the 0800 is now as the miss-info line for the very reason they give wrong info... they are not USCIS officers they are call center staff who have acess to the same information that you can access on the USCIS website.... does the fact that the information came from the appeals court not tell you that somewhere along the line they were denied and had to under go a legal appeal... if you are happy to continue along your chosen path knowing that it could end in a court room to establish your right to do AOS at a lot of expense to yourself and the chance that you may fail... then I wish you well....

In my eyes I would be asking myself if the trip home is really worth all that extra uncertainty....

For me the answer would be a very big NO..

Kez

Edited March 6, 2007 by Niagaenola

[rebeccajo 14]

I don't care to use words like 'fraud'.

What I will say, as I've said before - is this.

I simply DO NOT UNDERSTAND commiting acts that are ...

#1 - Either in direct violation of your present visa, or

#2 - Based upon the assumption of 'forgiveness' under an immigrant category one is not already in

and lastly

#3 - Doing either or both in today's political climate.

Immigration law is frequently modified in such a way that it either by accident or intent 'grandfathers' behavior that has been previously committed. Immigration law will be changed this year. My husband and I are in its muddy waters and our stance is to keep his nose impeccably clean.

Edited March 6, 2007 by rebeccajo

[Dr_LHA 3]

I think this thread needs to end here then. brightsunshine didn't ever come here for information, they came here for justification. They have ignored everything we've been saying, despite the wealth of experience here (more experience, I would add than anyone at the USCIS hotline has from my experience).

brightsunshine: Please, just do what you want to do. Ignore advice from board members. Feel free to dismiss their advice as "emotional". The fact is that you will most likely get away with what you want to do. If you're happy basing your future on "most likely" who are we to argue with you?

[Caladan 19]

Another thing to consider:

If something does go wrong; you get an officer who is suspicious, you get someone like Jewel's interviewer who compares the dates, etc., you're jeopardizing not just your AoS, but the F-1 is on the line, too. (As one of the criteria for being eligible for an F-1 is having non-immigrant intent.)

A further thing:

If your program requires you to travel outside the U.S.: a conference in Canada or the U.K. or Japan, you may want to plan carefully, because if you have to leave during adjustment of status & before AP, you'll have a hard time getting back in on an F-1. Things to consider.

And rebeccajo makes a very good point w.r.t. immigration law changing. This is just speculation, and should be taken as such, but the fees jumping for all the family-based visas in October indicates to me that it's pretty likely that there's going to be some movement on the illegal immigration problem (and the high fees are to work as a disincentive). Right now unauthorized work & unauthorized entry are forgiven upon marriage; this might not always be the case.

[Killer_Clown_2009 0]

1. My opinion - she should gather facts (as she is doing) and information and make the best choice for her circumstance (as she sees it, as it is her life and her choice). Probably that's what 99% of us would do, seeing as it's in our nature.

2. Canadians don't take part in the Visa Waiver Program.

3. I have overdosed on arrogance, just reading one particular person's posts in this thread - going to go detox.

Edited March 6, 2007 by jane2005

[Caladan 19]

Good point about the Canadians. I'm not sure why I got the impression Canada was part of it. (Though it's true a Canadian doesn't need a tourist visa, and now needs a passport to enter by air or sea.) My bad.

Either way, my point stands: you can enter the U.S. with a K-1 processing with tourist or other non-immigrant intent, even though you have long term "desire", because your intent is to *leave* at the end of the visit.

[notrepetiteashley 0]

I called the 1-800# and asked questions, too. PLEASE be wary of their advice. It got my (Canadian) husband denied entry into the US not once, but twice. Those call center (excuse me) asshats screwed up our case so badly by giving nothing more than incorrect information and advice. I finally talked to an actual officer at a border crossing and he was absolutely HORRIFIED by the info I was getting from the 800 line. He essentially told me those people take a 2 week course and then get on the phone to answer our life-altering questions. Grand.

Be careful, that's all. As someone has already said, there's a reason it's known as the Misinformation Line.

[MPGGPM 0]

1. My opinion - she should gather facts (as she is doing) and information and make the best choice for her circumstance (as she sees it, as it is her life and her choice). Probably that's what 99% of us would do, seeing as it's in our nature.

I agree with that point of view. I think she's asked questions, done research, and basically at this point knows that what she will attempt to do, has risks.

The one thing that Brightsunshine said that was also a good point, was that it will be basically up to the interviewing officer to make the interpretation, and that the opinions on the law vary. It will all be up to whomever would be adjudicating the case and how they see things.

I kind of look at it the same way as when someone visits the USA during the process (while doing a k-1, k-3 , etc..). Many people are let in , but then you also will read that occasional story about how someone who was just visiting their spouse got turned "back". And you wonder why when so many others are allowed in, that some others will get turned back? Basically, it really seems to depend on who you meet at the POE. One POE officer will see your visit as okay, and yet, another will deny you because of your immigrant intent (or whatever reason). Each officer interprets things their own way, even though the circumstances are similar. It's all up to the officer you see.

I think when she has her interview for AOS (if she does indeed leave on the F-1 and come back), I think it will be the same way. She could very well meet an interviewer who sees nothing wrong with what she did.........OR.....she could meet someone just like that person who interviewed the woman who came on the tourist visa and had her AOS denied because of the way she did things, and sent her back overseas and told her to apply for an I-130. (from that weblink)

I don't think anyone can say for certainty that her chances of being denied are 100% should she leave on the F-1 and come back. And as long as she knows the risks, .....because she seems to have researched the issue pretty well..........then, I wish her good luck if she tries.

All I know is, were I her spouse, no WAY would I let her go. I would do everything I could to talk her out of leaving. As long as there was this kind of risk, I just would not want her taking the chance. No way...............

Edited March 6, 2007 by MPGGPM

[brightsunshine 0]

3. I have overdosed on arrogance, just reading one particular person's posts in this thread - going to go detox.

does the fact that the information came from the appeals court not tell you that somewhere along the line they were denied and had to under go a legal appeal...

Yes, very true. Note that, Cavazos entered as a "visitor for pleasure", got married on the same day, and filed for AOS during deportation hearings. The case was found in his favor, and (I think) this sets precedence until over-turned. Is there a chance that mine might be it? Yes. How likely? I don't know.

I simply DO NOT UNDERSTAND commiting acts that are ...

#1 - Either in direct violation of your present visa, or

#2 - Based upon the assumption of 'forgiveness' under an immigrant category one is not already in

and lastly

#3 - Doing either or both in today's political climate.

Immigration law is frequently modified in such a way that it either by accident or intent 'grandfathers' behavior that has been previously committed. Immigration law will be changed this year. My husband and I are in its muddy waters and our stance is to keep his nose impeccably clean.

This is a very good point, the precedence and laws are good only until changed. I understand your position, since you wouldn't recommend working without authorization either, and think it's very consistent. Many on this board (dr_lha included), however, have said that working without authorization is fine, accruing unlawful presence is fine, etc so I just wonder, why the disparate treatment?

I have been just really curious about the law and precedence and such, and after searching high and low for a case where AOS is denied for someone with a similar situation, in vain, I got more curious. And I just want to relay information I found, to put into perspectives some folklore paraded passionately by a few here.

And I've agreed time and again that the safest way is not to travel. And in my situation, that's a fathomable choice. As a thought exercise, would your advice change for someone in a similar situation who wishes to travel to see a dying close relative? If it were me, I would be on the next flight out. Which is why I brought up different priorities, informed decisions, etc.

Either way, my point stands: you can enter the U.S. with a K-1 processing with tourist or other non-immigrant intent, even though you have long term "desire", because your intent is to *leave* at the end of the visit.

I have read some cases where people brought their K-1/K-3 paperwork with them, because it shows the CBP that they intend to leave to attend the consulate interview. Do you think that helps or hurts?

If your program requires you to travel outside the U.S.: a conference in Canada or the U.K. or Japan, you may want to plan carefully, because if you have to leave during adjustment of status & before AP, you'll have a hard time getting back in on an F-1. Things to consider.

Thanks for the advice. Thanks to reading this board, I learned not to leave during AOS without AP, and that emergency APs can be granted for life-or-death situations. I think regardless of whether I can get back in on F-1, the AOS would be considered abandoned.

[brightsunshine 0]

Hi MPGGPM, thanks for being back! Can I ask if your wife was ever asked about her I-130 when she entered on F-1? Does it help at all that she would have to go back for her consulate interview? Or is it simply not mentioned? The "immigration intent being trip-specific" concept is new to me, so I'm trying to grapple with it. Thanks.

[Dr_LHA 3]

Many on this board (dr_lha included), however, have said that working without authorization is fine, accruing unlawful presence is fine, etc so I just wonder, why the disparate treatment?

There is a specific clause in the INA that says that if you are married to a USC, you cannot be denied AOS due to either overstay of a visa or illegal work. I never said its "fine", I just said that currently there is no consequences for doing either of these things. As rebeccajo points out, the consequences may come back to bite you later in life, as changes to immigration laws are often made retrospective.

As far as I can tell there is no section of the INA where it states Visa fraud is forgiven if you're married to a USC. Its a grey area though I'd admit. However there are documented cases of people being refused AOS because the USCIS officer determined that the person had intent when entering on a non-immigrant visa.

[rebeccajo 14]

This is a very good point, the precedence and laws are good only until changed. I understand your position, since you wouldn't recommend working without authorization either, and think it's very consistent. Many on this board (dr_lha included), however, have said that working without authorization is fine, accruing unlawful presence is fine, etc so I just wonder, why the disparate treatment?

I presume you mean disparate opinions?

I believe Doc explains his position above.

As for me, I don't recommend working without authorization for the simple reason that I can't find anywhere in the CFR that says unauthorized work is permitted.

IMHO, the fact that an act may be forgiven is not enough reason for me to recommend that act based upon a set of variables that have not yet taken place.

I don't know that I would call working on your visa (if you are not supposed to) as fraud. I personally would consider that 'violating the terms of the visa'. From that perspective, it's my opinion that it's risky to violate a visa based upon forgiveness of an immigrant status one would like to have bestowed upon one in the future.

Edited March 6, 2007 by rebeccajo

[Dr_LHA 3]

Actually this concept of "forgiveness" is not really what the INA says. It says that they can't hold illegal work or overstay against you when adjudicating AOS. To me this means something very different from forgiveness, which would imply that somehow you have a clean slate as soon as AOS is granted.

[rebeccajo 14]

Actually this concept of "forgiveness" is not really what the INA says. It says that they can't hold illegal work or overstay against you when adjudicating AOS. To me this means something very different from forgiveness, which would imply that somehow you have a clean slate as soon as AOS is granted.

When I've looked at the CFR I don't quite 'get it' that way.

Because they specifically state that if you are an immigrant in A, B, or C category, they don't hold it against you.

Which in my opinion means - because you are A, B, or C, we are giving you a free pass based on being A, B or C. Not based upon the grant of Permanent Residency.