US Citizen Wanting to Marry someone on B2

[jay 2 0]

no. its not fraud.

there are 2 options on uscis website.

1. Beneficiary person in US

2. Beneficiary person outside US.

when there is one night stand then why not one day or one month marriage.

[davidindallas 6]

If the B2 ends in the middle of November, what would be the best time to file the adjust of status forms? (After marriage of course)

[geowrian 22,337]

29 minutes ago, davidindallas said:

If the B2 ends in the middle of November, what would be the best time to file the adjust of status forms? (After marriage of course)

Anytime after you marry and before their legal stay expires, as noted by the I-94. When the visa expires doesn't matter.

 

You can file after legal stay ends and the overstay is ignored for AOS purposes, but avoiding being out of status for any period of time is way to go.

[davidindallas 6]

Our ceremony is set for the second week of October  

[Andy 2]

On 9/11/2017 at 7:38 PM, Going through said:

... intent is determined at port of entry, not at the interview.  During the interview, the validity of the marriage/relationship is the focus....intent becomes something that was already adjudicated (for lack of a better term, but it fits) before that stage....

This is both right, and wrong. Intent is a primary determinant at the port of entry, because if a non-immigrant visa holder (or visa waiver user) is considered to have intent to remain, their entry will be refused.

 

However, subsequent circumstances may color, or change, the perception of intent, and at an AOS interview, the immigration officer is quite within his/her rights to reconsider the question of intent, in the light of events after entry, for which the official at the port of entry could not have known or considered.

 

These situations where non-immigrant visa holders, or more riskily, visa waiver users, marry, stay and file for AOS have clear potential for fraud and are generally considered carefully in the light of possible intent. Even in circumstances such as being described here, where a B2 holder has entered the US before meeting the US citizen - that would appear to remove all possibility of intent - but an immigration official at AOS could, if there is reason to doubt, wonder if the couple did in fact have any prior contact, or, depending on other factors, whether the visitor may have had intent to find a partner and marry if it proved possible to do so - that would again raise the issue of intent.

 

What tends to demonstrate there was no intent, is the degree to which the visitor did not take actions to close out their lives in their home country, and thus had a job to go back to, bank accounts, savings, financial commitments and the like, all of which had to be wound up later.

 

Of course, some immigration officials aren't interested in delving into these details and focus instead on the relationship and the possibility of green card fraud. But that is certainly not the case for all, and personally I would not want to take a chance on getting one of the more compliant ones at interview.

[geowrian 22,337]

1 minute ago, Andy said:

...and at an AOS interview, the immigration officer is quite within his/her rights to reconsider the question of intent, in the light of events after entry, for which the official at the port of entry could not have known or considered.

 

These situations where non-immigrant visa holders, or more riskily, visa waiver users, marry, stay and file for AOS have clear potential for fraud and are generally considered carefully in the light of possible intent. Even in circumstances such as being described here, where a B2 holder has entered the US before meeting the US citizen - that would appear to remove all possibility of intent - but an immigration official at AOS could, if there is reason to doubt, wonder if the couple did in fact have any prior contact, or, depending on other factors, whether the visitor may have had intent to find a partner and marry if it proved possible to do so - that would again raise the issue of intent.

See Matter of Cavazos and Matter of Battista, in which the BIA ruled otherwise. Or more specifically, they cannot use preconceived intent as the basis for denial of an I-485.

[Andy 2]

5 minutes ago, geowrian said:

See Matter of Cavazos and Matter of Battista, in which the BIA ruled otherwise. Or more specifically, they cannot use preconceived intent as the basis for denial of an I-485.

There are two things here. The first is evidentiary: is there, or is there not, evidence of intent at the time of entry. If there is no evidence, merely a supposition, that supposition cannot in itself form the basis of an AOS denial. However, the lack of evidence of intent at that point does not prevent the immigration officer from, in practical terms, raising the bar on relationship evidence to more closely examine the marriage to determine if it is genuine, or for the purposes of obtaining a green card.

 

Secondly, whether at the time of entry the visitor provided a material misrepresentation in order to gain entry, or which led to entry. If there was a material misrepresentation, the entry was unlawful, and benefits cannot accrue directly from it. 

 

That latter point is why it is significantly more hazardous for visa waiver users, because their entry is based on them having waived their right to due process. Thus if a material misrepresentation is judged to have occurred at the time of entry, they cannot file to stay deportation, because they have waived that right. 

 

 

[geowrian 22,337]

27 minutes ago, Andy said:

There are two things here. The first is evidentiary: is there, or is there not, evidence of intent at the time of entry. If there is no evidence, merely a supposition, that supposition cannot in itself form the basis of an AOS denial. However, the lack of evidence of intent at that point does not prevent the immigration officer from, in practical terms, raising the bar on relationship evidence to more closely examine the marriage to determine if it is genuine, or for the purposes of obtaining a green card.

Sure, an officer can use any reason he wants to raise the bar on what is considered to be a bona fide marriage as that requirement is at his/her discretion. It doesn't mean doing so is in accordance with USCIS policy, the AFM, or INA, but it can happen. I would just note that the the officer were to utilize preconceived intent in their stated decision for denial, they are opening themselves up for a challenge.

 

Quote

Secondly, whether at the time of entry the visitor provided a material misrepresentation in order to gain entry, or which led to entry. If there was a material misrepresentation, the entry was unlawful, and benefits cannot accrue directly from it. 

Sure, they can always consider willful, material misrepresentation. However, they cannot consider preconceived intent as a basis for misrepresentation as an IR of a USC. Note that this is the way it applies to USCIS...DOS is not bound by this for issuance of a visa (hence the "new"/updated policy by DOS).

Edit: As an example, if the CBP officer asked "What is the purpose of your visit?" and the applicant responds "To visit my mother". But instead of visiting his mother, he marries and files for AOS, then that statement could be used against him as misrepresentation. Well, that's assuming it is deemed material, which is debatable in itself so maybe it's not a perfect best example but still illustrates the point.

 

Are you aware of any cases where USICS has tried to use preconceived intent as a basis for a denial of AOS or a misrepresentation finding of an IR of a USC?

Edited October 2, 2017 by geowrian

[Andy 2]

1 hour ago, geowrian said:

Sure, an officer can use any reason he wants to raise the bar on what is considered to be a bona fide marriage as that requirement is at his/her discretion. It doesn't mean doing so is in accordance with USCIS policy, the AFM, or INA, but it can happen. I would just note that the the officer were to utilize preconceived intent in their stated decision for denial, they are opening themselves up for a challenge.

 

Sure, they can always consider willful, material misrepresentation. However, they cannot consider preconceived intent as a basis for misrepresentation as an IR of a USC. Note that this is the way it applies to USCIS...DOS is not bound by this for issuance of a visa (hence the "new"/updated policy by DOS).

 

Are you aware of any cases where USICS has tried to use preconceived intent as a basis for a denial of AOS or a misrepresentation finding of an IR of a USC?

 

The INA, and USCIS policy gives broad authority for immigration officers to examine cases in whichever way they see fit. For sure, judgements, particularly from immigration appeals can create additional guidance, but rarely result in the USCIS modifying regulations governing the work of field offices. The emphasis remains on officers having broad discretion in operational terms, with a view that in the event they overstep and a judge pushes back, it is only evidence that they are doing their job - even if a little overzealously in a few instances.

 

By the way, material misrepresentation does not need to be willful, which is why I said that it can be 'in order to gain entry' or 'lead to entry'. The weight given to a material misrepresentation may be determined by whether it is intentional or not, but it would remain a misrepresentation. This is nothing to do with 'preconceived intent', and not related to it, hence raised separately.

 

In terms of cases where preconceived intent has been found and AOS denied - there have been many cases over the years. It's important to note the 'substantial equities' issue in this instance, because rulings are not that preconceived intent was insufficient to deny AOS, but that where substantial equities exist in the case, these must also be considered. In many cases, these factors are not sufficiently present (for example, visa waiver holders, who cannot request voluntary departure, or where a non-immigrant would suffer an automatic bar to re-entry and thus be unable to return to their home country and apply for a visa in the appropriate way). That is why I made the point that benefits cannot accrue directly from unlawful entry. For those entitled, they can accrue indirectly, via such things as voluntary departure, or of course appeals where the individual is entitled to pursue due process. 

 

EDITED TO ADD: The reason I raise these aspects of this case is that in my time actively participating here (many years ago), one of the principle aims of the forum as a whole was not just to answer the specifics of each question, but also to explain the context and interpretations for the benefit of other readers. In those days there was very little in the way of coherent information about US immigration procedures, policies and practices, and Visa Journey was one of the first (and best) places for broader explanations and detail.

 

Edited October 2, 2017 by Andy

[davidindallas 6]

I really appreciate all of the commentary and feedback. We have our license and are marrying this week. I will post updates about the process for those who are interested in the process and need help as well. The VisaJourney community is amazing! So happy to now be a part of it.