When is non-immigration intent established?

[Reba 2]

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!

except if you already have an F1 student visa, and then your fiance files a petition for a K1, when you leave the country to visit your family, you will no longer be eligible for the F1 return, becaus the K1 petition will change your status upon re-entry. They'll know its there, they're smart. Or well...they're about as smart as their computer systems, and they'll know there's a fiancee petition there with your name on it, which changes your intent upon entry.

[Yodrak 7]

sunshine,

I don't know what effect submitting an application to adjust status will have on your current F-1 status. (I'm talking about your immigration status in the USA, not about your visa.)

I recommend that you discuss your specific situation and plans with an experienced immigration atorney, as ardilla did. She and her husband were prudent, and it helped keep them out of trouble.

Yodrak

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

[Fandango 1,439]

The problem as I see it is establishing there was no intent for purposes of the AOS interview. I don't see the big roadblock at the POE when you return, and I think everyone's focusing on the wrong thing.

You're going to start getting hung up on questions like 'when did you realize you wanted to be together?' now I don't really know what the questions asked are, but it seems like you're going to try to hinge on some grey area...ie 'we weren't sure sure until I came back' Even your membership here proves intent. Not saying they're going to subpoena your isp records, but there will be a lot of glossing over and lying for you to do to prove your intent wasn't to immigrate when clearly at this point it will be when you return.

I think your last entry here was perfect and lawful, and cannot see why you would not want to maximize the CLEAR distinction that there was no intent upon entering.

[MPGGPM 0]

except if you already have an F1 student visa, and then your fiance files a petition for a K1, when you leave the country to visit your family, you will no longer be eligible for the F1 return, becaus the K1 petition will change your status upon re-entry. They'll know its there, they're smart. Or well...they're about as smart as their computer systems, and they'll know there's a fiancee petition there with your name on it, which changes your intent upon entry.

That's not entirely true. She could return with the F-1 visa while applying for the K-1. It's not true that she wouldn't be "eligible" to use the F-1.

What is true, is that by filing a K-1, it would make it more difficult at the POE when she tries to return with the F-1, because they most likely would see, as you said, that she had filed for a K-1. They might question her about it at the POE.

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.

Personally though, were I in her position, I would either.....

1) Get married sooner, file for AOS,(hopefully it's been over 60 days since last entry) and then if she feels that she must travel, she could apply for advanced parole. Hopefully she would get the AP soon enough for her to travel.

2) Just cancel the trip. Apply for AOS (at a later time...when she feels she's ready .....as to not rush into anything).....and make the trip after the process has been completed. She can still attend classes while doing AOS.

Edited March 3, 2007 by MPGGPM

[Nancy2015 2]

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?)

Because, Brightsunshine, when I was entering the country, I had no idea whatsoever that I was going to get married or let alone, file AOS. I didn't even know about the existance of such thing as AOS. I got married about 8 months after entry. In your case, you know what you're gonna do. And in my opinion, it makes all the difference.

I can tell that you expect people here to tell you it's okay to do what you want to do. And if you are determined to do it, it is your right and choice.

[Caladan 19]

brightsunshine, if I'm reading your story correctly, you're continuing with your Ph.D. studies in the fall, right?

So let's get clear on the question. It's not illegal to get married while on an F-1 (or a tourist visa), or to adjust status if you just happened to get married while here. (No one would have a problem if you got married and *left*, or entered in 2005, met the man of your dreams, and got married in 2007) What is illegal is to enter with immigrant intent on a non-immigrant visa. What makes this a little complicated is that you're *also* using your F-1 for its legitimate purpose: to study in a Ph.D. program.

You have a lot of options. You could apply for a K-1, but as that seems likely to mess with your F-1, I wouldn't. You could enter on your F-1, get married, and then file for a spousal visa rather than AOS; you'd leave for the interview and re-enter, so you'd fulfill the terms of the F-1 (i.e., left the country), but not messed with the timetable for your wedding. You can fly your brother here for his test prep and not get into the situation at all. There's a lot of roads from here.

As a grad student, about half of my friends are in international relationships. Most of them visit home at some point between first entering grad school, even while they're dating. I would recommend that you make an appointment with your university's international students office. They deal with this *all* the time; people in their twenties date and fall in love and get married. They'll be able to set you straight or refer you to a lawyer if you need it, and they'll need to be involved anyway as your changing status means them adjusting paperwork.

It's definitely worth a consultation with an attorney to make sure you have your paperwork lined up and your story straight. But this isn't an uncommon situation, and someone at your university will have done this before, and I'd start looking there.

[brightsunshine 0]

You could enter on your F-1, get married, and then file for a spousal visa rather than AOS

I am exploring this option. I wonder if there is a difference between filing K3 and filing AOS in terms of showing immigration intent? That is, if they do view filing AOS as inconsistent with F-1 status (and hence deportable?), then wouldn't filing for a K3 also be?

I would recommend that you make an appointment with your university's international students office.

I did, actually. She said that just presenting the F-1 visa and I-20 at the port of entry does not in and of itself make a statement regarding intent. As long as I answer truthfully to all questions asked, there is no misrepresentation. That sort of made sense to me, since I looked over the I-94, which is the only thing I fill out at the port of entry, and found no relevant statements.

Even your membership here proves intent. Not saying they're going to subpoena your isp records, but there will be a lot of glossing over and lying for you to do to prove your intent wasn't to immigrate when clearly at this point it will be when you return.

My intent, frankly, is to be able to live my life - marry my love, finish my PhD, while being able to travel back to my home country when my family needs me (which is frequent) - without breaking any laws. I wouldn't really need to file AOS if it wasn't for the fact that marriage to a USC could potentially cause problems with traveling on F-1, since I'm maintaining my F-1 requirements just fine. I don't know if it makes sense, filing AOS is almost "incidental", and not the primary purpose of my trip here. Sigh, it's such a catch-22.

I can tell that you expect people here to tell you it's okay to do what you want to do. And if you are determined to do it, it is your right and choice.

Actually, I was hoping for some logical discussion, actual experience, etc. Which I found, and am grateful for. I am a scientist, and as such, am more interested in what is right than whether people pat me on the back. My school counselor basically told me it's ok, but I still wanted to find out exactly when a statement of intent is made, whether the primary purpose of a visit matters, and whether the distinction between "intent" and "desire" made by the previously-cited lawyer is well-known and used.

It's definitely worth a consultation with an attorney to make sure you have your paperwork lined up and your story straight.

I think we might just have to bite the bullet and do this. I'll report on what they say.

[Fandango 1,439]

Even your membership here proves intent. Not saying they're going to subpoena your isp records, but there will be a lot of glossing over and lying for you to do to prove your intent wasn't to immigrate when clearly at this point it will be when you return.

My intent, frankly, is to be able to live my life - marry my love, finish my PhD, while being able to travel back to my home country when my family needs me (which is frequent) - without breaking any laws. I wouldn't really need to file AOS if it wasn't for the fact that marriage to a USC could potentially cause problems with traveling on F-1, since I'm maintaining my F-1 requirements just fine. I don't know if it makes sense, filing AOS is almost "incidental", and not the primary purpose of my trip here. Sigh, it's such a catch-22.

And people in hell want icewater. I don't say that to be rude...that is not my intent...but your wants are not realistic as you cannot logistically re-enter on an F-1 while planning to get married whilst here and then just AOS.

A lot of people get hung up on 'oh I want to do this that or the other' when the bottom line is that wants are different than following the rules and doing things that you MUST do to respect the law....instead of just doing what you WANT to do. Everyone here had an idea of how and when they wanted to get married, but I'd hazzard a guess that everyone of us needed to readjust our expectations based upon the need to follow the rules. We all have had disappointments and have had to deal with things we didn't want to do, but what is the other option?

We can play semantics all day long as to when your 'intent' to marry developed...whether or not you could hide in the grey area of 'oh I didn't totally decide to get married until I came back'....well, again, I find that semantical in nature...and should you come up against a particularly hard-assed interviewer for AOS, this MIGHT pose a problem.

Furthermore, you may be fulfilling the F-1 reqs just fine, but the second you use it as a vehicle to enter the country and subsequently get married and adjust, that is beyond the realms of an F1 and as the word 'intent' keeps flying around...you have used your visa for fraudulent purposes as your intent upon entering was beyond the realm of what your F-1 allowed. Also...you mention 'not the purpose of my trip here'...well if you're marrying a USC and planning on emigrating here, then it's no longer a trip, is it? Filing AOS would no longer be 'incidental' at that point.

It's really a no-brainer....in order to truly respect the law, you should cancel your trip until you have married and adjusted status and applied for advanced parole to travel (pls check with others as I have no idea if this is even an option)....or you should go see your family, come back on the F-1 and then start proceedings for a K-1. Logistically speaking, there's no lawful option for you to plan a wedding in the summer, go see your family now, then return with intent to marry and adjust from your F-1 to gain LPR status.

I think if you're truly torn you should speak to an immigration attorney as none of us here are giving qualified legal advice and are only adding our layperson's opinion.

[MPGGPM 0]

You could enter on your F-1, get married, and then file for a spousal visa rather than AOS

I am exploring this option. I wonder if there is a difference between filing K3 and filing AOS in terms of showing immigration intent? That is, if they do view filing AOS as inconsistent with F-1 status (and hence deportable?), then wouldn't filing for a K3 also be?

The difference is that you are not supposed to "knowingly" enter the USA with plans to remain and adjust status on a "non-immigrant" visa (non-spousal).

When you come in on a K-3, it is made for that purpose. And, you would also be leaving the USA, even if you came here on your F-1 while studying/attending classes. The fact is, that you would not be remaining here on a visa that was not made for such a thing.

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. She was allowed entry into the USA (even though we had filed for an immigrant visa). Her purpose for coming here was to do her dissertation (she is also working on a Phd...like you).

So, as I stated above, you can try to enter with your F-1 while you have either applied for the K-3 or whatever visa.

The only catch is, you may get denied entry into the USA when they see you have plans to eventually immigrate. That is the risk you take. The odds of you being denied entry into the USA on the F-1.....go up, once you file an application and show you have intent to eventually become a resident and remain.

I will say that my wife did not have much trouble entering on the F-1, even though we were going through the immigrant visa process.

You'll have to decide whether you want to go this route, and take the risk of trying to enter again to continue your studies, if you leave the USA for a time , on your F-1, and having applied for the K-3 or whatever visa you decide on.

I still personally think you should stay in the USA, adjust status......and only then leave on any trip out of the USA. I know it's important for you to travel and you have your reasons, but it will add much complications for you......and I think since you are already here, they could be avoided.

Edited March 3, 2007 by MPGGPM

[brtlmj 0]

Brightsunshine, we need to distinguish between right/wrong choice and lawful/unlawful one. My opinion (and I am entitled to one ) is that, as long as right/wrong is concerned, what really matters is your intent at the time of visa application.

Now, if it's lawful/unlawful you are interested in... get a lawyer

Bartek

[Dr_LHA 3]

My intent, frankly, is to be able to live my life - marry my love, finish my PhD, while being able to travel back to my home country when my family needs me (which is frequent) - without breaking any laws.

Look, immigration to the USA means making some sacrifice, you can't have everything you want. You have to accept that filing AOS from a non-immigrant visa means that some limitations are going to be put on you, you can't just continue to do everything you want. The reason for this is because a K-1 visa is not supposed to be used to immigrate to the USA. They make a clear exception to this only for people who came here and got married without planning it. However that gets reset every time you enter the USA, right now you're in the clear. If you travel you're not.

I nkow this is hard because I have some experience in this BTW, I lost two grandparents and wasn't able to go to their funerals because of USCIS not processing my visa in a timely fashion (took 18 months where it should have taken 3).

[rebeccajo 14]

As regards to your F1 -

There was a comment made above that the K1 changing your status upon entry.

You could possible travel back and forth on your F1 while a K1 is in process (possibly).

After you file for AOS (with our without K1), you can no longer use your F1 for re-entry. Your status has changed to an adjustment applicant at that point, and leaving the country without Advanced Parole is considered abandonment of that AOS petition.

Edited March 3, 2007 by rebeccajo

[lostinblue 1,989]

Spend the 50-100 bucks and talk to a lawyer.There are opinions all over the board posted here. I believe some are emotional.... find out what is legal The answer may not be right in some people's eyes but legal in the eyes of the law. As a person who has a PHD I would be honored to have you become a part of the united states in the future.We need more people with your smarts.

[MPGGPM 0]

There's a lot of well meaning people on here, and many will say to talk to a lawyer etc...

But, in my experience, you also need to use your own judgement as well. There are many lawyers out there, who will tell you that just about anything is possible. Whether it be because they truly believe that, or be it because they just want your business.

But, I've talked to and read about (not to mention a bad experience with one) lawyers who will give you advice that might not be the best way to go about things, and it may get you into trouble as well.

For example, I talked to one lawyer a while ago, who told me that my wife (who has a tourist visa) could come into the USA and adjust status. Mind you...we were ALREADY married at the time. So, according tho that lawyer, she was giving us advice that many people on this forum believe was wrong and might have gotten my wife and I into trouble had we ever decided to try it. Then, just 2-3 weeks ago, I called and consulted another lawyer, and I brang up the advice that I was told long ago by that other lawyer. To my surprise, he agreed with her, and he also told me that it was legal for my wife to come here on a tourist visa, already married, and with "intent" to adjust status (basically what you are contemplating doing on an F-1.........we just happened to have a different non-immigrant visa)..

So, 2 lawyers have told me something that most people here would find incorrect. And according to a link below, could have been very risky.

http://britishexpats.com/forum/showthread....975#post4406975

That link was from a very lengthy argument over something similar to what you are contemplating. The only difference was it being a tourist visa, which is also a non-immigrant visa.

http://www.visajourney.com/forums/index.php?showtopic=53779

So, bottom line is , go ahead and consult with a lawyer if you wish, but be vigilant and in the end, YOU have to decide what is best.

You have to remember, lawyers are also in the business to make money, and I think many of them will not say "no" to just about any scenerio. I mean.....what do they care? If you end up leaving on the F-1, then coming back on the F-1 and doing AOS (which of course by then you'd have immigrant intent and full knowledge of your plans to do AOS)....and it gets you into to trouble (like that woman from the link I provided), for a lawyer, it's just more business for them. They can then just charge you more to file an appeal, etc........

In the end, I still say your own judgement (using all the facts everyone has given you)........will be your best bet.

Good luck.

[brightsunshine 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.