What is the best way? Marrying an USC

[Harmonia 211]

Definitely do a consult with an attorney. Many do free phone consultations. Its worth your time, but everything you've said here seems fine. You absolutely can adjust if you've decided to get married now, not when you entered.

[aaron2020 11,651]

Damn it people.

Immigrant intention for the Immediate Relative of a USC is not a valid reason to deny AOS. Matter of Batista and Mateer of Cavazos.

All this talk about intent and the 30/60 days rule is stupid since the law has changed.

[aaron2020 11,651]

It's easy to correct though. Once you've been allowed into the USA the onus is on the USCIS to prove you intended to immigrate, not on you to prove you didn't. Period. Anything after that is extraneous.

Stay and adjust status if that is your wish

Under Matter of Batista and Matter of Cavazos, USCIS can not deny the AOS of an IR of a USC, so USCIS is NOT going to investigate to prove immigrant intent when it has zero outcome on the case.

[caliliving 606]

You are already here and came on a B2 visa and the border officer let you in.. so you are here, and you had no intent according to border officer. Plans change, things change.. it happens... stay here and adjust.. overstay is forgiven on a B2 visitor visa, as long as you are marrying a USC.. so you are OK to overstay, just DO NOT LEAVE THE COUNTRY until your greencard is in hand.. if you are that worried, you can overstay and marry after 60 days and then adjust.. whatever you think is best:) If you want, talk to a competent lawyer, but they will tell you the same thing.

Stay, adjust, do not leave until you have your GC or you will be denied GC and you will have to wait in your home country a long time....

Overstay will happen and it is forgiven as long as you are marrying a USC

[aaron2020 11,651]

Hello,

I am dating an USC and it is the second time I am visiting him (i was born in Brazil and have Portuguese citizenship too).

And now we decide to get married as soon as possible and start the my process to become a Legal Permanent Resident. Considerations: I am in the USA now (entered legally using ESTA - part of the Visa Waiver Program), want to stay here during the process including working (if possible).

What is the best (fast) way to proceed?

> go back to Brazil > apply for K1 visa > come to USA and get married > file AOS and EAD

> get married in US > go back to Brazil > apply for K3 or IR1/CR1 visa > come to USA

> get married in US > apply for K3 or IR1/CR1 visa and file AOS at the same time (and staying here) You do not need a visa since you are already here. You only need marriage to a USC and AOS.

> is there any other way? Will an attorney help on this process?

Thanks in advance for your help

Ignore all the chatter about immigrant intent. It doesn't matter for you under Matter of Battista and Matter of Cavazos which are immigration court cases which states that USCIS can not deny the AOS of an Immediate Relative of a USC for having immigrant intent.

An attorney can help if you and your USC don't have the time or desire to learn about filing on your own. Most poeple here file on their own without an attorney.

Get marry in the US and file for AOS. It's the quickest and most simple way for you to stay together and start your life in the US. Be aware that if you leave during the AOS process without Advance Parole, you will be abandoning the entire process.

Read the Guides and follow them.

Best of luck.

[danpereir 0]

Thank You for all the help! i really appreciate.

i entered using VWP (not B1 or B2) and one of my concerns is overstaying.

We are going to check with an attorney too, but probably going to get married (we really want that) > file AOS option.

Thanks again People!

[southcoast 27]

Ignore all the chatter about immigrant intent. It doesn't matter for you under Matter of Battista and Matter of Cavazos which are immigration court cases which states that USCIS can not deny the AOS of an Immediate Relative of a USC for having immigrant intent.

An attorney can help if you and your USC don't have the time or desire to learn about filing on your own. Most poeple here file on their own without an attorney.

Get marry in the US and file for AOS. It's the quickest and most simple way for you to stay together and start your life in the US. Be aware that if you leave during the AOS process without Advance Parole, you will be abandoning the entire process.

Read the Guides and follow them.

Best of luck.

I wasn't able to find battista, but I disagree that cavazos is that clear. Today there is little problem with a vwf petition, but since any decision of the USCIS is unreviewable in court, I would pay close attention to the issue of intent at the time of entry. Lying about ones intent is still an excludable offense, and waivers aren't always easy to get- particularly in the case of a new marriage

[ClauReece 0]

Hello

I believe everyone here wants their process to be handled quickly. Fast, is never fast enough for those who are separated from their loved ones.

In my humble opinion, from the moment you post this kind of questions it doesn't seem that getting married is a very spontaneous action. You seem to be just trying to figure out which process is fastest.

Those on a waiver visa have the privilege of travelling to the U.S. without the hassle of applying for a tourist visa, getting married while on a waiver, staying in the U.S and applying for AOS is taking advantage of that privilege and can be considered fraud.

Just think you should be aware of the consequences of it.

Wish you all the best

[Unshakable Faith 493]

Damn it people.

Immigrant intention for the Immediate Relative of a USC is not a valid reason to deny AOS. Matter of Batista and Mateer of Cavazos.

All this talk about intent and the 30/60 days rule is stupid since the law has changed.

It's actually in the manual for immigration workers about the 30/60 day "rule" for them to apply when adjucating AOS. I've always read on this site how much people down play it and say that there's no such thing. But I read it for myself on the government's website in their policy manual. It does currently exist.

Edited December 28, 2015 by FN&KO

[NikLR 13,227]

Under Matter of Batista and Matter of Cavazos, USCIS can not deny the AOS of an IR of a USC, so USCIS is NOT going to investigate to prove immigrant intent when it has zero outcome on the case.

Exactly what I said. The other poster was trying to make it an issue and I said it wasn't one.

Edited December 28, 2015 by NLR

[aaron2020 11,651]

Thank You for all the help! i really appreciate.

i entered using VWP (not B1 or B2) and one of my concerns is overstaying.

We are going to check with an attorney too, but probably going to get married (we really want that) > file AOS option.

Thanks again People!

It doesn't matter how you legally entered the US. As long as your entry was legal, you can file to adjust. Once your USC spouse files the I-130, I-485, etc., you will be authorized to be in the US. Staying over your 90 days is not a problem.

I wasn't able to find battista, but I disagree that cavazos is that clear. Today there is little problem with a vwf petition, but since any decision of the USCIS is unreviewable in court, I would pay close attention to the issue of intent at the time of entry. Lying about ones intent is still an excludable offense, and waivers aren't always easy to get- particularly in the case of a new marriage

Google. https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=matter%20of%20battista

Many lawyers would disagree with you about Cavazos.

There is no need for a waiver of anything. Please read what immigration lawyers have experienced under Matter of Battista and Matter of Cavazos. Use Google, it was easy for me to find the information.

Hello

I believe everyone here wants their process to be handled quickly. Fast, is never fast enough for those who are separated from their loved ones.

In my humble opinion, from the moment you post this kind of questions it doesn't seem that getting married is a very spontaneous action. You seem to be just trying to figure out which process is fastest.

Those on a waiver visa have the privilege of travelling to the U.S. without the hassle of applying for a tourist visa, getting married while on a waiver, staying in the U.S and applying for AOS is taking advantage of that privilege and can be considered fraud.

Just think you should be aware of the consequences of it.

Wish you all the best

What exactly are the consequences to the OP at this point when she is already been admitted into the US? None. Zero. Nothing.

Your advice would be timely if the OP was outside the US. None of it matters now that she is in the US.

It's actually in the manual for immigration workers about the 30/60 day "rule" for them to apply when adjucating AOS. I've always read on this site how much people down play it and say that there's no such thing. But I read it for myself on the government's website in their policy manual. It does currently exist.

You are missing the exception to the 30/60 day "rule."

Since Matter of Battista and Matter of Cavazos, you will not find a single case of an adjustment of a spouse of a USC being denied for immigrant intent alone. The AOS may be denied for other causes, but not for immigrant intent.

http://www.hummelaw.com/Blog/2014/January/The-30-60-Day-Rule.aspx

The 30/60 Day Rule

Posted on Jan 10, 2014 12:21pm PST

Foreign nationals who enter the United States should be aware of the 30/60 Day Rule when considering whether to apply for a change of status or adjustment of status shortly after they arrive. In short, the 30/60 Day Rule sets forth certain presumptions about whether a non-immigrant foreign national has acted in bad faith in filing for a change of status (to another non-immigrant category) or adjustment of status (to permanent resident) during the 60 day period after they arrive in the U.S. as a non-immigrant. This Rule is found in the U.S. Department of States Foreign Affairs Manual at 9 FAM 60.63 n.4 and has been adopted by USCIS and applied when a decision is made on an application for a change of status or adjustment of status.

. . .

Special Rule for Immediate Relatives of U.S. Citizens.

Note, however, that Immediate Relatives of U.S. Citizens who apply for adjustment of status within 60 days of entry are treated differently under the law. Immediate Relatives are defined as children (under 18), parents, or spouses of United States Citizens. In short, preconceived intent cannot be presumed if the applicant/beneficiary is the child, parent or spouse of a U.S. Citizen AND it cannot be the basis for the denial of an application for Adjustment of Status IF it is the only adverse factor. This rule comes from several cases decided by the U.S. Board of Immigration Appeals, including Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980), Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981), and Matter of Battista, 19 I&N Dec. 484 (BIA 1987). It is important to understand that the holdings of these cases do not mean that the 30/60 Day Rule cannot be applied to immediate relatives, but instead, that it cannot be the only reason that USCIS denies the application, assuming that everything else checks out and the foreign national is otherwise eligible to adjust status. But keep in mind that USCIS has many resources at their disposal and that they can and will investigate cases where there is a suspicion of wrong doing or evidence that the foreign national actually had preconceived intent to immigrate at the time of entry. If USCIS cannot find actual proof of the preconceived intent, all they need to do is find one good reason to deny the application, in the exercise of discretion, and this can form the basis for a valid denial under the law. Even though USCIS may have a difficult time proving that an Immediate Relative acutally had immigrant intent, applicants should give serious consideration to simply delaying the filing of the application for adjustment of status until 60 days after the date of entry in order to avoid the automatic application of the rule.

Edited December 28, 2015 by aaron2020

[Ban Hammer 13,352]

as this thread has run its course, it is now closed.