Entering USA on Tourist Visa and daughter submitting I-130

[azblk 338]

30 minutes ago, CatherineA said:

It is illegal to enter with the intent to AOS. However, once admitted, you can still AOS without them looking into your intent at the border. Just because someone successfully lies to CBP doesn't make it legal or non-fraudulent. It means they got away with it. It's still illegal if you don't get caught. 

Claiming and insisting that something is illegal/fraudulent  over and over again does not make it so. Again intent is determined at the border/POE and since you do not work for CBP you have no idea what interaction this person had with agent that let them in. The  USCIS FAM states that " When it comes to fraudulent misrepresentation, the key concept is that silence, or failure to volunteer information, is not a misrepresentation." so you need to stop extending the definition of illegal or fraud to suit you beliefs.

Edited December 28, 2017 by azblk

[Longingfor 195]

17 hours ago, missileman said:

Thank you, but I know how the immigration system works.  My wife (here via a CR-1)and I were apart for more than a year, even though she is from a VWP country.

You being apart from your wife for one year has no bearing on this present situation. You chose to be apart for that length of time. Others chose not to be apart. There are always choices and options. Not everyone will make the same choices.

[Pennycat 880]

30 minutes ago, azblk said:

Claiming and insisting that something is illegal/fraudulent  over and over again does not make it so. Again intent is determined at the border/POE and since you do not work for CBP you have no idea what interaction this person had with agent that let them in. The  USCIS FAM states that " When it comes to fraudulent misrepresentation, the key concept is that silence, or failure to volunteer information, is not a misrepresentation." so you need to stop extending the definition of illegal or fraud to suit you beliefs.

You have zero clue what I do for a living or what my professional background is but big ol' hint: I do know what I'm talking about.  To start with, that quote does come from the FAM, which is the State Department's manual, not USCIS's and is discussing conduct during a visa interview not during POE or AOS, which are processes both separate from each other and separate from a visa interview.

 

And YET AGAIN, because we can't seem to grasp this concept on this thread: the problem doesn't lie with USCIS and AOS in the first place. The problem lies with CBP. If you claim that you are entering as a tourist but you are in fact entering as an intending immigrant, you are committing fraud and it is illegal. Saying "no it isn't" over and over again doesn't magically make it so. Because any real-life consequence to it has been erased by judicial precedent doesn't make it not-illegal. It just makes it consequence-free, really different thing.  If you think that it isn't, then why lie about your intentions at the border? Just tell them that you here with your B1/B2 are getting married and adjusting status next week and see what happens, right? 

 

Where the loophole is is that USCIS cannot take your intent at the border when factoring in an AOS decision mostly because intent is difficult to prove in hindsight. Intent is considered at the border and if CBP lets you in, you're good to go. That still does not mean that misrepresenting your intentions at the border is legal. It just means that it won't preclude you from successfully AOSing. Many people successfully lie to CBP and gain entry under false pretenses and will never face consequences for that, mostly because they don't want to punish people who *do* have legitimate changes in mind and circumstance and also the issue of illegal immigrants who have a new basis for AOS. People can and do exploit this all the time. And no, you absolutely 100% will not (probably) have your AOS denied on the basis of fraud. Why? Because they cannot take intent into consideration. So even if you did lie your way in, and they CAN prove it, they can't use it against you.  But it still doesn't mean that the action of using a non-immigrant visa (besides K1) with the intention to stay and adjust status is legal or that the lying is legal. 

 

 

[azblk 338]

26 minutes ago, CatherineA said:

You have zero clue what I do for a living or what my professional background is but big ol' hint: I do know what I'm talking about.  To start with, that quote does come from the FAM, which is the State Department's manual, not USCIS's and is discussing conduct during a visa interview not during POE or AOS, which are processes both separate from each other and separate from a visa interview.

 

And YET AGAIN, because we can't seem to grasp this concept on this thread: the problem doesn't lie with USCIS and AOS in the first place. The problem lies with CBP. If you claim that you are entering as a tourist but you are in fact entering as an intending immigrant, you are committing fraud and it is illegal. Saying "no it isn't" over and over again doesn't magically make it so. Because any real-life consequence to it has been erased by judicial precedent doesn't make it not-illegal. It just makes it consequence-free, really different thing.  If you think that it isn't, then why lie about your intentions at the border? Just tell them that you here with your B1/B2 are getting married and adjusting status next week and see what happens, right? 

 

Where the loophole is is that USCIS cannot take your intent at the border when factoring in an AOS decision mostly because intent is difficult to prove in hindsight. Intent is considered at the border and if CBP lets you in, you're good to go. That still does not mean that misrepresenting your intentions at the border is legal. It just means that it won't preclude you from successfully AOSing. Many people successfully lie to CBP and gain entry under false pretenses and will never face consequences for that, mostly because they don't want to punish people who *do* have legitimate changes in mind and circumstance and also the issue of illegal immigrants who have a new basis for AOS. People can and do exploit this all the time. And no, you absolutely 100% will not (probably) have your AOS denied on the basis of fraud. Why? Because they cannot take intent into consideration. So even if you did lie your way in, and they CAN prove it, they can't use it against you.  But it still doesn't mean that the action of using a non-immigrant visa (besides K1) with the intention to stay and adjust status is legal or that the lying is legal. 

 

 

This is not entirely accurate. It is only in cases where the beneficiary is in IR-1 category that intent can not be used against you. A person in any other category will have to overcome the presumption of immigrant intent. The judicial precedent in these cases has been that if the beneficiary is an IR-1 they have significant ties to this country and even in cases where PRECONCEIVED INTENT can be shown or proven they can not be denied AOS based on that.

Edited December 28, 2017 by azblk

[Umka36 781]

1 hour ago, Longingfor said:

You being apart from your wife for one year has no bearing on this present situation. You chose to be apart for that length of time. Others chose not to be apart. There are always choices and options. Not everyone will make the same choices.

What choice are you talking about? Planning to come to US with intent to AOS? If so, it's against the TOS of this website to advise anyone with this "option/choice" as it's considered fraud.

[Longingfor 195]

2 minutes ago, Umka36 said:

What choice are you talking about? Planning to come to US with intent to AOS? If so, it's against the TOS of this website to advise anyone with this "option/choice" as it's considered fraud.

I gave no advice to anyone. I made a statement in relation to a single post. Please read carefully before jumping to conclusions or making assumptions. 

[Pennycat 880]

2 minutes ago, azblk said:

This is not entirely accurate. It is only in cases where the beneficiary is in IR-1 category that intent can not be used against you. A person in any other category will have to overcome the presumption of immigrant intent. 

Right. That's what we're talking about in this thread, immediate relatives (spouses and parents). And minor unmarried children and certain widow/ers if we absolutely must throw the kitchen sink into every discussion to be "entirely accurate". 

 

And they're not in IR-1 category, that's a visa. They're in whatever category of non-immigrant visa they're misusing or have a sudden change of heart while using properly. When they apply to adjust status, they are applying for permanent residency based being an immediate relative, but they don't get a new visa. 

 

 

11 minutes ago, azblk said:

The judicial precedent in these cases has been that if the beneficiary is an IR-1 they have significant ties to this country and even in cases where PRECONCEIVED INTENT can be shown or proven they can not be denied AOS based on that.

 

Yep. I said that pretty much exactly. Can you please tell me how that changes the legality of lying to a CBP officer at POE? 

 

See, that is the consequence-free thing I'm talking about. Just because you (or this parent, or anyone who would AOS based on being a qualifying immediate relative) won't be denied AOS for it, still does not make that action legal. It just means you won't have any consequences for being caught (once you succeed, if you're caught *while lying* to CPB, you get turned around at the border, possibly after a period of detention depending on when the next plane is, and depending on the nature of the lying may face a ban for misrepresentation-- it is clearly illegal and a punishable offense, it is just not punishable *after the fact* for certain types of people, namely people applying for AOS based on being an immediate relative). Still doesn't make it not-illegal. 

[Umka36 781]

Just now, Longingfor said:

I gave no advice to anyone. I made a statement in relation to a single post. Please read carefully before jumping to conclusions or making assumptions. 

If you actually read what I wrote, I asked questions. Again what choices are you talking about?

[florida racer 73 200]

If you ask me this whole thread is a TOS violation, it appears that there might be some intent to defraud whether knowingly or unknowingly, either way, the OP has been given information and now it is up to them to proceed how they think they should!

[Pennycat 880]

13 minutes ago, florida racer 73 said:

If you ask me this whole thread is a TOS violation, it appears that there might be some intent to defraud whether knowingly or unknowingly, either way, the OP has been given information and now it is up to them to proceed how they think they should!

It is clear that the mother is already in the US. I think it is quite possible that she's been in the us for 21+ years, on a long-expired tourist visa and now that her daughter is old enough to petition for her, that is what this line of questioning is about. Or that the daughter herself arrived at the same time on a tourist visa, married and adjusted status and is now a citizen eligible to petition for her mother. Either way, there is a route for her available in or out of the US, because she's already here. 

[Pennycat 880]

21 hours ago, kiaradv said:

Hello Visa Journiers, (don't know if that's a word

 

So, I have a friend who is requesting my help in the paper work for her mother. Here's the story:

My friends is Permanent Resident of USA and her mom entered the USA under a tourist visa.  My friend wants to submit I-130 for her mom and for the mom to stay and wait until her paper comes out. 

I honestly dont know how this works, the process and the consequences of this action.  She's asking for my help because I did all the paper work for my hubby myself. 

 

Can anyone please advice me as to this? 

 

 

Thanks in advance <3

 

Also to finally answer OP: honestly if she just recently came on a tourist visa and hasn't overstayed, she'd still be able to go home and wait for her IR-5 visa there, and that would take about a year. That could be preferable, depending. 

 

Otherwise, she can adjust status in country, you can follow this and be sure to scroll to the bottom about also submitting an I-485 at the same time as the I-130 (this is really important). http://www.visajourney.com/content/immigration-parents

 

If she has long overstayed and especially if she was working and especially especially if she was working with false documents, this really ought to be seen by an immigration lawyer because it's not as simple as you and your husband's case was. 

[florida racer 73 200]

11 minutes ago, CatherineA said:

It is clear that the mother is already in the US. I think it is quite possible that she's been in the us for 21+ years, on a long-expired tourist visa and now that her daughter is old enough to petition for her, that is what this line of questioning is about. Or that the daughter herself arrived at the same time on a tourist visa, married and adjusted status and is now a citizen eligible to petition for her mother. Either way, there is a route for her available in or out of the US, because she's already here. 

I just re=read the whole thread, where did you get that the mother is here for 21+ years?

 

I stand by my original post!

 

Catherine, I must disagree with you

 

[kiaradv 2]

4 hours ago, Pavel1982 said:

Agreed. Best idea would be to go back and apply through consular process to avoid any unnecessary headache. What bothers me here though, some members are making unnecessary comments. People comes here to seek advice and we should  stick to give them advise instead of making rude comments about his or her decision because we don't know everything behind that decision

Thank you!  

 

Thanks to everyone who was nice enough to give advice. And thanks to everyone who was nice enough to leave rude comments.   I didn't expect this topic to be so hot.  I honestly came here because I am clueless to this process and want to give the best advice to my friend.  I am still very lost to the topic since half say it's illegal and half say its ok to AOS. 

Anyone who is nice enough and judgmental free to advice in PM regarding this case, I will greatly appreciate since I feel uncomfortable putting any more information out there.  

 

Thanks! <3

[kiaradv 2]

10 minutes ago, CatherineA said:

Also to finally answer OP: honestly if she just recently came on a tourist visa and hasn't overstayed, she'd still be able to go home and wait for her IR-5 visa there, and that would take about a year. That could be preferable, depending. 

 

Otherwise, she can adjust status in country, you can follow this and be sure to scroll to the bottom about also submitting an I-485 at the same time as the I-130 (this is really important). http://www.visajourney.com/content/immigration-parents

 

If she has long overstayed and especially if she was working and especially especially if she was working with false documents, this really ought to be seen by an immigration lawyer because it's not as simple as you and your husband's case was. 

Thanks!!! I will advice  

[florida racer 73 200]

Nobody is being judgmental, here is the issue, you are asking for a "friend" , you have very limited information to give. Maybe the direct people involved could come on here and give the commentators the proper information when they ask for it then maybe you would have received more positive response. I also believe that the way you worded you question to the community caused some of the responses here. Alot of people have been waiting for a long time and when we see someone who is trying to adjust status on either a tourist visa or ESTA is a hurt to us, and also Immigration fraud (illegal). So do not take the responses personal, this is a question that should have been asked by the people directly involved or you should have directed these questions to a qualified immigration attorney.

 

Good luck to you