I-130 concurrently with the I-465

[gregoryagu 31]

The following, from Humme Law is interesting for those not familiar with "The Matter of Battista":

 

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.

[xillini 71]

2 hours ago, Neonred said:

Where are you getting your information?  If you look at similar filings on VJ that just is not the case. 

 

Perhaps this is just your "feeling" without facts to back it up?

Many similar filings may have been approved successfully, but on the mean time, it is noted that other similar filings may not be approved and lead to tougher and complicated processes (after AOS is denied, then they can appeal or not, which costs much more than just married after 60 days and everyone is happy). 

 

Technically, in the case AOS is denied, petitioners and sponsors may still appeal, but who will have to the price? 

In some area, AOS takes 4 months (like Southern CA) and upto 1 year is where pretty much every AOS will have a decision,

but in the case where USCIS vigorously review AOS, it takes not only longer but also may lead to denial and subsequent legal proceeding (reminding you BIA, Board of Immigration Appeal, the agency overviewing USCIS takes 18 months and much more to nominate attorney than simple AOS attorney)

 

On the mean time, to answer your question, the truth is hard to find. Many USCIS's processes are veiled to find exact truth.

Some adjucators are more stringent while others not, which is what it means by "Case-by-case". So the answer is we don't know, and to fully answer your question, it is simply not worth "nothing hurts to try and see what happens" attitude, but in practicing any kind of legal proceedings, "it is better safe than sorry". (It is not some kind of credit card applications, but can lead to both serious financial and legal consequences if denied). 

 

USCIS is not that naive to explicitly deny the case and leave the trace to public that can lead to serious averse legal actions by pro-immigrants organizations, but rather they do it implicitly, so I can't back up with objective and specific evidence. (If I have those specific evidences against USCIS, I wouldn't be here to type this long response, but simply looking for attorney and sue USCIS claiming financial compensation for its wrong doing of immigration benefits, not to mention I can make much more donations in national levels....) 

 

It is likely that 60 day rules can be a trigger that USCIS can review the applications, because USCIS still can deny the case based on other material facts (such as they are not convinced of bona-fide marriage)

 

But like I said, ultimately the beneficiary and sponsors will have to pay the price if things go wrong and will take the credit if things go right. It is only fair to advise that they may experience delayed processing and therefore it is the best not to file for marriage until 60 days. It is their choice. Plus, just waiting 30 days doesn't give them too much hard time for most cases. The ultimate goal for every married couples is not to apply AOS but, much more importantly, to successfully get Green card in hands without delay and adverse actions. 

 

So again, it is open ended questions and depends on philosophy of couples, who will ultimatley have to make decisions should they want to apply AOS. If it is me? I would just wait another 1-2 months and apply to AOS. 

Edited July 23, 2017 by xillini

[gregoryagu 31]

Is the 30/60/90 day rule about the day of the wedding, or simply when the AOS is applied for?

 

In other words, our wedding was May 5, and her arrive was March 28.  So it has been over 60 days.  So if the rule applies to the date the AOS is applied for, it is well over 60 days.

 

If the rules is referring to the date of the wedding, then it was over 30 days (but not 60).

 

Greg