Spouse overstaying on tourist visa

[caliliving 606]

lots of people change their minds when they enter.. however, you can not have intent.  try showing up to the airport with 'good luck in... ' cards, 4 suitcases of clothing among other things and you will see how quickly you will be on the next plane home! (i know lots that have tried this and it actually happened). 

however, you would be surprised on how many people enter legally with a visa and then overstay and AOS many years later.  even 10 years later.. as long as you have a visa to AOS from you can legally dp it.  

 

people on this board want to debate this 20/30/60/100 rule and the fact of the matter is that it doesnt matter.  no one can deny you a marriage based greencard based on overstay or when you got married.  

[NYCruiser 423]

15 hours ago, Deedee0613 said:

They married in September, she arrived in October. 

I assuming the wife is from the Dominican Republic? Since she married abroad, was this disclosed to the Immigration Officer when she got her Visa in the DR? How about the IO at the Port of Entry? 

[Nitas_man 3,100]

10 hours ago, caliliving said:

lots of people change their minds when they enter.. however, you can not have intent.  try showing up to the airport with 'good luck in... ' cards, 4 suitcases of clothing among other things and you will see how quickly you will be on the next plane home! (i know lots that have tried this and it actually happened). 

however, you would be surprised on how many people enter legally with a visa and then overstay and AOS many years later.  even 10 years later.. as long as you have a visa to AOS from you can legally dp it.  

 

people on this board want to debate this 20/30/60/100 rule and the fact of the matter is that it doesnt matter.  no one can deny you a marriage based greencard based on overstay or when you got married.  

Lot of case law on the books for something that doesn't matter.  It was suggested to file outside this period to avoid all of the issues that resulted in building the case law files that reference it.

[Dashinka 24,900]

16 hours ago, Nitas_man said:

Risky if they (USCIS) applies the 30/60 rule.  Misrepresentation can be automatically presumed.  Especially if they got married a month before entry.  Hard to overcome.

 

I agree with you.  They get married a month before her arrival presumably in another country, then she enters the country on a tourist visa and now are deciding to AOS.  This will certainly raise eyebrows and may garner some tough questions.

Edited November 27, 2017 by Bill & Katya

[Boiler 46,297]

Question were asked and answered at the PoE

[Dashinka 24,900]

26 minutes ago, Boiler said:

Question were asked and answered at the PoE

So are you saying an AOS IO cannot delve into potential fraud?

[Mollie09 1,543]

17 minutes ago, Bill & Katya said:

So are you saying an AOS IO cannot delve into potential fraud?

 

Per Matter of Cavazos, Matter of Battista, intent is determined at POE and is not, of itself, reason for denial.

[geowrian 22,338]

11 minutes ago, Bill & Katya said:

So are you saying an AOS IO cannot delve into potential fraud?

They sure can. But they cannot consider preconceived intent as the basis for fraud or a denial of an AOS application.

For instance, if the officer asked "Are you married?" and the OP lied about it, and that lie was deemed to be a material misrepresentation, then it could be used against her.

If the officer asked "Do you intend to stay in the US / AOS" and the OP said "No", they cannot go back and determine that she intended otherwise and use that as a basis for denial.

[Boiler 46,297]

35 minutes ago, Bill & Katya said:

So are you saying an AOS IO cannot delve into potential fraud?

Others have said it but would add if there was some other fraud, what happens, you file an I 601 and any reasonably well prepared I 601 will pass so just a delay in getting your GC and a bit more in fees.

 

I assume the CO's know this so whats the point if you are otherwise eligible, sure there are some things that can not just be ignored.

[Dashinka 24,900]

4 hours ago, Boiler said:

Others have said it but would add if there was some other fraud, what happens, you file an I 601 and any reasonably well prepared I 601 will pass so just a delay in getting your GC and a bit more in fees.

 

I assume the CO's know this so whats the point if you are otherwise eligible, sure there are some things that can not just be ignored.

That all makes sense, I was just pointing out the fact that there may be some suspicions that may be questioned deeper in this case.

[Boiler 46,297]

The suspicions were something for the PoE to consider and she is here.

[Deedee0613 2]

On 11/26/2017 at 8:29 PM, caliliving said:

You are fine and overstating is forgiven when married to a us citizen. Just y iu can not leave until you get ap...you can not be denied a green card bc you overstayed as intent is given at the border!!!

 

File as soon as possible but don't be stressed if you file late as you won't be banned. 

Thank you for your response!

[Deedee0613 2]

On 11/26/2017 at 9:10 PM, Starkilla09 said:

Your brother's wife is good and fine to adjust status in the U.S. Once her application gets received, she'll be on authorized stay until the application is adjudicated by USCIS several months down the road. She'll be able to get an employment authorization document (EAD) within 60 to 90 days, and can also get Advance Parole Document (AP) to temporarily leave the U.S. while her adjustment of status is pending if she decides to apply as well for one. She must not leave the U.S. under any circumstance prior to getting her AP or he adjustment of status application will be deemed abandoned, and she'll need an immigrant visa to be able to return to the U.S. 

Thank you so much for your input 

[Deedee0613 2]

12 hours ago, NYCruiser said:

I assuming the wife is from the Dominican Republic? Since she married abroad, was this disclosed to the Immigration Officer when she got her Visa in the DR? How about the IO at the Port of Entry? 

Yes they got married in DR, but this is not her first time traveling on a Tourist Visa. So at POE nothing was said or told. 

[Deedee0613 2]

Thank you all for your inputs. To add some pieces to the puzzle, i wanted to let you all know that, she received a tourist visa a year ago. This was not her first entry to the US.