AOS in Detroit - from Tourst visa

[eric1225 6]

The rule is a guidance. It's not the law.

Furthermore, Matter of Batista and Matter of Cavazos has rendered this guidance useless.

In addition, the burden of proof of fraud is on USCIS.

Google and find a case of visa fraud based on the 30/60/90 rule in the recent years. You are not going to find any.

Read this;http://www.hooyou.com/familybased/exceptions.html

Yes, I have read your link. The Matter of Batista is a case from 1980s.

And please read that case carefully, the respondent of the case was visiting on non-immigration visa, but also he is the beneficiary of the a petition of his father which made him an immediate relative already at the entry and that's why they erred the case.

In OP's case, whether if you are an immediate relative or not depends on whether you were married to your petitioner or not at the time of entry. So it is relevant but not determined. After all, they just want to check if your marriage is genuine.

Edited July 10, 2016 by eric1225

[EM_Vandaveer 2,408]

Agree with aaron2020 100%. 30/60/90 was never law.

Now, Matter of Battista and Matter of Vavazos makes it completely irrelevant for immediate relatives of USCs.

Just as an anecdote: I got married 11 days after entering on VWP. Had no problems AOSing in 2011.

[EM_Vandaveer 2,408]

Yes, I have read your link. The Matter of Batista is a case from 1980s.

And please read that case carefully, the respondent of the case was visiting on non-immigration visa, but also he is the beneficiary of the a petition of his father which made him an immediate relative already at the entry and that's why they erred the case.

In OP's case, whether if you are an immediate relative or not depends on whether you were married to your petitioner or not at the time of entry. So it is relevant but not determined. After all, they just want to check if your marriage is genuine.

Being an immediate relative DOES NOT depend on the time of marriage. Before or after POE, it still makes the alien spouse an immediate relative of a USC.

[eric1225 6]

Agree with aaron2020 100%. 30/60/90 was never law.

Now, Matter of Battista and Matter of Vavazos makes it completely irrelevant for immediate relatives of USCs.

Just as an anecdote: I got married 11 days after entering on VWP. Had no problems AOSing in 2011.

That's totally fine. We have said many time there are cases people get married shortly after entry and it's absolutely real marriage. Also, I never said it was the law and I have stated many times it's just a guidance rule.Matter of Battista is and has always been a immediate relative because his father is USC and he is the beneficiary of the petition. He'd be totally fine to file AOS even on the same day he entered.

If you entered on the same day, and then met your life lover and married for AOS, that's also fine; but he/she may face more questions during the process or interview because they fall into the guidance rule situation and USCIS will probably want to investigate more on their case making sure they are real. It's just a guidance; but it's also an ideal guidance for people who accidentally fall into those situations to follow in order to make their processes smoother.

[EM_Vandaveer 2,408]

That's totally fine. We have said many time there are cases people get married shortly after entry and it's absolutely real marriage. Also, I never said it was the law and I have stated many times it's just a guidance rule.Matter of Battista is and has always been a immediate relative because his father is USC and he is the beneficiary of the petition. He'd be totally fine to file AOS even on the same day he entered.

If you entered on the same day, and then met your life lover and married for AOS, that's also fine; but he/she may face more questions during the process or interview because they fall into the guidance rule situation and USCIS will probably want to investigate more on their case making sure they are real. It's just a guidance; but it's also an ideal guidance for people who accidentally fall into those situations to follow in order to make their processes smoother.

We can go around and around and around and you can keep repeating the same thing. It is still incorrect.

Matter of Cavazos:

"(1) While an Immigration and Naturalization Service Operations Instruction binds neither an immigration judge nor the Board, the Service policy manifest therein may appropriately be considered by the immigration judge and the Board in exercising discretion.

(2) Notwithstanding evidence establishing preconceived intent, an application for adjustment of status should as a general rule be granted in the exercise of discretion in the case of an immediate relative or other specified alien who under Operations Instruction 245.3(b) and 8 C.F.R. 242.5(a)(2) and (4) could be granted voluntary departure until invited to appear before a United States consul to apply for an immigrant visa.

(3) Where a finding of preconceived intent was the only negative factor cited by the immigration judge in denying the respondent's application for adjustment of status as the beneficiary of an approved immediate relative visa petition and no additional adverse matters are apparent in the record, and where significant equities are presented by the respondent's United States citizen wife and child, a grant of adjust- ment of status is warranted as a matter of discretion."

Because of this, preconceived intent is NOT used as a reason to deny an AOS application of an immediate relative of a USC.

Obviously if fraud was suspected, that can absolutely used to deny an AOS application, but that has absolutely nothing to do with the whole 30/60/90 day "rule".

You keep saying a short relationship before marriage may get scrutinized more to make sure the marriage is bona fide. Yes, that's true, it just has nothing to do with the 30/60/90 day "rule".

[eric1225 6]

Being an immediate relative DOES NOT depend on the time of marriage. Before or after POE, it still makes the alien spouse an immediate relative of a USC.

Yes, you are right. Being an immediate relative does not depend on when you get married and does not affect your eligibility to apply for AOS at all; but whether you are married, or let's say it the other way whether you are the immediate relative at the time of entry is relevant cause USCIS use it to determine whether you fall into the 30/60 guidance and whether they decide to investigate more on your case.

Also for the link aaron2020 posted, http://www.hooyou.com/familybased/exceptions.html

Please read it carefully. The title is called the "Exceptions to the ........." all cases you provided such as Matter of Battista, or the other two examples listed in your link are shown they the respondent have either parent, or children who are USCs already prior and at the time of entry and this fact make them the immediate relatives and exempted from the guidance. In our case, if you married prior to your entry, then you are exempted from the guidance. Otherwise, you were single and you were not the exemption. You can still apply and obtain your GC; but just to be more prepared. That's it.

[aaron2020 11,651]

Yes, I have read your link. The Matter of Batista is a case from 1980s. Wow. So guidance overrule case law? Did you even bother to Google "30/60/90 Matter of Battista?" Probably not.

And please read that case carefully, the respondent of the case was visiting on non-immigration visa, but also he is the beneficiary of the a petition of his father which made him an immediate relative already at the entry and that's why they erred the case.

In OP's case, whether if you are an immediate relative or not depends on whether you were married to your petitioner or not at the time of entry. NO Whether a person is an IR or not does not depends on whether the person was married or not at the time of entry. Status at the time of entry is irrelevant. You don't seem to get this at all. So it is relevant but not determined. After all, they just want to check if your marriage is genuine.

Oh please.

[eric1225 6]

We can go around and around and around and you can keep repeating the same thing. It is still incorrect.

Matter of Cavazos:

"(1) While an Immigration and Naturalization Service Operations Instruction binds neither an immigration judge nor the Board, the Service policy manifest therein may appropriately be considered by the immigration judge and the Board in exercising discretion.

(2) Notwithstanding evidence establishing preconceived intent, an application for adjustment of status should as a general rule be granted in the exercise of discretion in the case of an immediate relative or other specified alien who under Operations Instruction 245.3(b) and 8 C.F.R. 242.5(a)(2) and (4) could be granted voluntary departure until invited to appear before a United States consul to apply for an immigrant visa.

(3) Where a finding of preconceived intent was the only negative factor cited by the immigration judge in denying the respondent's application for adjustment of status as the beneficiary of an approved immediate relative visa petition and no additional adverse matters are apparent in the record, and where significant equities are presented by the respondent's United States citizen wife and child, a grant of adjust- ment of status is warranted as a matter of discretion."

Because of this, preconceived intent is NOT used as a reason to deny an AOS application of an immediate relative of a USC.

Obviously if fraud was suspected, that can absolutely used to deny an AOS application, but that has absolutely nothing to do with the whole 30/60/90 day "rule".

You keep saying a short relationship before marriage may get scrutinized more to make sure the marriage is bona fide. Yes, that's true, it just has nothing to do with the 30/60/90 day "rule".

Aren't you contradicting yourself in this sentence? What's short relationship? It's when you fall into the 30/60 guidance rules. Thus, it does have something to do with the 30/60 rules, in another word, short relationship, USCIS wants to make sure and investigate more the marriage is bona fide. I mean, they need to make sure every marriage is bona fide. But you will just be more likely to be picked up as the red flag case because you fall into their guidance.

[aaron2020 11,651]

Yes, you are right. Being an immediate relative does not depend on when you get married and does not affect your eligibility to apply for AOS at all; but whether you are married, or let's say it the other way whether you are the immediate relative at the time of entry is relevant cause USCIS use it to determine whether you fall into the 30/60 guidance and whether they decide to investigate more on your case.

Also for the link aaron2020 posted, http://www.hooyou.com/familybased/exceptions.html

Please read it carefully. The title is called the "Exceptions to the ........." all cases you provided such as Matter of Battista, or the other two examples listed in your link are shown they the respondent have either parent, or children who are USCs already prior and at the time of entry and this fact make them the immediate relatives and exempted from the guidance. In our case, if you married prior to your entry, then you are exempted from the guidance. Otherwise, you were single and you were not the exemption. You can still apply and obtain your GC; but just to be more prepared. That's it.

YOU ARE SO WHACKED!!!!

All the lawyers are wrong. You are right.

Aren't you contradicting yourself in this sentence? What's short relationship? It's when you fall into the 30/60 guidance rules. Thus, it does have something to do with the 30/60 rules, in another word, short relationship, USCIS wants to make sure and investigate more the marriage is bona fide. I mean, they need to make sure every marriage is bona fide. But you will just be more likely to be picked up as the red flag case because you fall into their guidance.

Yes, two members with years of experience are wrong. You who just joined a few months ago is right. Just stop because you are not helping the OP or anyone else with wrong information.

The guy who entered on the VWP, married in 11 days, and got a green card is wrong, but you are right. What an ego.

Edited July 10, 2016 by aaron2020

[Boiler 45,499]

There has never been a 30/60 day law, just something that has been promulgates as long as I can remember.

[aaron2020 11,651]

Boiler makes 3 long time posters vs. you.

[aaron2020 11,651]

That's totally fine. We have said many time there are cases people get married shortly after entry and it's absolutely real marriage. Also, I never said it was the law and I have stated many times it's just a guidance rule.Matter of Battista is and has always been a immediate relative because his father is USC and he is the beneficiary of the petition. He'd be totally fine to file AOS even on the same day he entered.

If you entered on the same day, and then met your life lover and married for AOS, that's also fine; but he/she may face more questions during the process or interview because they fall into the guidance rule situation and USCIS will probably want to investigate more on their case making sure they are real. NO. NO. NO. How many more time are you going to argue this wrong argument? Just stop, you are wrong. It's just a guidance; but it's also an ideal guidance for people who accidentally fall into those situations to follow in order to make their processes smoother.

[EM_Vandaveer 2,408]

Aren't you contradicting yourself in this sentence? What's short relationship? It's when you fall into the 30/60 guidance rules. Thus, it does have something to do with the 30/60 rules, in another word, short relationship, USCIS wants to make sure and investigate more the marriage is bona fide. I mean, they need to make sure every marriage is bona fide. But you will just be more likely to be picked up as the red flag case because you fall into their guidance.

No. You are wrong. I'm not trying to bicker here, but for future readers of this thread, it's important to point this out.

The completely IRRELEVANT (for immediate relatives of USCs) 30/60/90 day "rule" has nothing to do with the bona fide or fraudulent nature of the relationship. The 30/60/90 day rule is about intent. Preconceived intent or lack thereof to stay permanently in the US after entering on a non-immigrant visa. It has nothing to do with the relationship itself.

I was merely clarifying in my previous post that of course AOS could be denied if the marriage was deemed fraudulent.

But that has nothing to do with 30/60/90. 30/60/90 is about preconceived intent and is irrelevant to immediate relatives of USCs.

Edited July 10, 2016 by EM_Vandaveer

[eric1225 6]

That's totally fine. We have said many time there are cases people get married shortly after entry and it's absolutely real marriage. Also, I never said it was the law and I have stated many times it's just a guidance rule.Matter of Battista is and has always been a immediate relative because his father is USC and he is the beneficiary of the petition. He'd be totally fine to file AOS even on the same day he entered.

If you entered on the same day, and then met your life lover and married for AOS, that's also fine; but he/she may face more questions during the process or interview because they fall into the guidance rule situation and USCIS will probably want to investigate more on their case making sure they are real. NO. NO. NO. How many more time are you going to argue this wrong argument? Just stop, you are wrong. It's just a guidance; but it's also an ideal guidance for people who accidentally fall into those situations to follow in order to make their processes smoother.

I apologize. I have never said all lawyers were wrong or anything. Here is the email sent from my lawyer explaining the intention fraud or 30/60 rules to me.

Immigrant Intent

Having immigrant intent when you came to the United States on a non-immigrant visa can be a basis for inadmissibility or denial of your green card application. Even if the I-130 petition filed by your husband is approved, meaning the USCIS finds that your marriage and relationship was real and not done for immigration purposes, the I-485 or green card application (adjustment of status) can be denied due to this immigrant intent.

So what are the bases for immigration officers to find immigrant intent?

Actually there are a lot of factors that come into play. Some applicants even say outright at the interview that when they last came to the United States on a specific non-immigrant visa, let’s say a tourist or H-1B visa, or even a visa waiver, that they came with the intent of marrying their spouse and immigrating to the United States. Some applicants had that intention when they came in, get married immediately upon entry, and would thus raise suspicion with the officers.

Some people though may “seem” to have immigrant intent, but actually have none.

Let’s say you came to the U.S. on a non-immigrant visa intending to only visit, study, or work (depending on which type of visa), have a girlfriend or boyfriend, and while here, you and your special friend decide on getting married and you decide to apply for a green card, then that clearly is not immigrant intent. The decision came only while you were here, not before or while entering the United States.

Sample Fact Patterns

Sample 1

• A and B have known each other over the internet for 1 year.
• A is from a foreign country and B is from the US.
• They eventually intend to get married, and A intends to come to the US to get married and immigrate.
• A applies for a non-immigrant visa such as a tourist and tells the consul that A’s intention is to just visit.
• A’s tourist visa gets approved.
• A goes to the US.
• A gets married and applies for a green card.
• Immigrant Intent: Yes.
• What Should Have Been Done: B could have visited A, got married, came to the US, and filed petition for him on the way to consular processing for the immigrant visa. Or B could have visited A at an point over the past year (the rule is 2, but the fact pattern here says they’ve known for a year), came back to the US, and did a fiance petition on the way to the fiancé visa processing.

Sample 2

• A and B have known each other over the internet for 1 year.
• A is from a foreign country and B is from the US.
• They eventually intend to get married, and A intends to come to the US to get married, but A and B intended to eventually live at A’s home country (foreign country and not the US). So there was an intent to get married, but not an intent for A d to immigrate to the US.
• A applies for a non-immigrant visa such as a tourist and tells the consul that A’s intention is to just visit.
• A’s tourist visa gets approved.
• A buys a round trip ticket.
• A goes to the US.
• A gets married and does not apply for a green card immediately.
• A few weeks later, A changed her mind, enjoys life in the US, and A and B decide to settle in the US. A decides while in theUS to apply for a green card.
• Officer at interview goes through extensive questioning but A explains to officer that A’s mind changed while here in the U.S., and that A did not have any intent to immigrate when A entered.
• Immigrant Intent: No

Sample 3

• A and B have known each other over for over 5 years.
• A is from a foreign country and B is from the US.
• A has been to the US several times on a tourist visa and B has been to A’s home country several times.
• A and B have a boyfriend / girlfriend relationship, but still did not intend to get married.
• A visits B again in theUS with no intention of immigrating.
• B proposes, and A says yes.
• A gets married.
• Officer at interview goes through extensive questioning but A explains to officer that A did not intend to get married, was proposed to while she was here, and A said yes.
• Immigrant Intent: No.

Sample 4

• A and B have known each other over for over 5 years.
• A is from a foreign country and B is from the US.
• A has been to theUS several times on a tourist visa and B has been to A’s home country several times.
• A and B have a boyfriend / girlfriend relationship, but still did not intend to get married.
• While B was in A’s home country, B proposes, and A says yes.
• They get married in A’s home country (foreign country).
• They intend to live in the US for good.
• A has a 10 year tourist visa that is still valid.
• A comes to the US and files for a green card.
• Immigrant Intent: Yes (But note, if they got married abroad, but came to the US WITHOUT A intending to immigrate, meaning they are still not sure where to settle, but while here in the US they change their mind and decide to settle here, then there is no immigrant intent).
• What Should Have Been Done: A should have stayed in A’s country while B, after going back to the US, files an I-130 immigrant petition for A, on the way to consular processing.

The 30/60/90 Rule

There is also this 30 / 60 / 90 day rule that the USCIS adopts in adjudicating green card applications based on marriage. This is found through the Department of State’s Foreign Affairs Manual (9 FAM 40.63 n4) when examining events that occur shortly after entry to the USA

30 Day Rule: If you file your green card application within 30 days of entry, there is a presumption of immigrant intent. It’s not an automatic finding and denial, it is just a presumption. It can be rebutted by you and your spouse depending on your real intent and answer to the questions. Let’s say you had no intention to immigrate, but got proposed to or thought of marrying a week after entry, and then you filed for a green card within the 30 day period, then there ultimately should not be a finding of immigrant intent, because there was none.

60 Day Rule: If you file your green card application within 31 to 60 days of entry, there is no presumption, but there is a reasonable suspicion of immigrant intent. Inquiries would still be made as to your intent upon entry, but it is not as strict as the 30 day rule.

90 Day Rule: If you file your green card application 61 days and beyond (not sure how the 90 came in, but that’s the memo), then there is a presumption that you acted in good faith. Officers may still ask though what your intention was upon entry, and if immigrant intent was found then the results could still be a finding of immigrant intent.

What Happens If Immigrant Intent Is Found

If immigrant intent is found, then the I-485 green card application will be denied. Some may issue a Notice of Intent to Deny and allow you file an I-601 waiver. It depends on the office’s policy.

If it is denied, you would then have to re-file the I-485 with an I-601 hardship waiver to waive the grounds for inadmissibility. I-601 hardship waivers are tough. You would have to show that there will be extreme hardship to your U.S. Citizen spouse if 1) you are to be abroad with your spouse in your home country; or if 2) you are to be separated with your spouse, meaning your spouse is in the US and you are abroad.

The I-130 petition will still be approved if you are able show a bona fide marriage, but it won’t grant you a green card because of the immigrant intent and I-485 denial. An approved I-130 will also not allow you to get a work permit.

Again, I never said the rule is law but just guidance; just trying to say the timing when you get married or in another word, establish and become the IR of USCs does play as a determine fact whether if USCIS considers it's intention fraud or not. I think OP's case may fall into example 4 but the exception because they got married prior to entry.

I apologize again if I was wrong. This is what my lawyer sent me before. If these are wrong, I should probably let her know ASAP. lol

[EM_Vandaveer 2,408]

Well, yes, she is wrong. Per Matter of Cavazos EVEN IF preconceived intent was established, it is simply not used to deny an AOS application of an immediate relative of a USC as long as there are no other negative factors.

It's really that simple.