AOS from H1B immediately after entering US

[issea 43]

My question: Is AOS from H1B right after the entry to the US possibly considered as visa fraud? 

 

I was reading the VJ wiki about AOS from other visas.

In particular, this entry: http://www.visajourney.com/content/otheraos/

in paragraph 2, it says: "Entering the US on another type of visa, such as student (F-1) or H1B, followed quickly by marriage to a US citizen, and then followed quickly by an application for adjustment of status might be construed by the USCIS to be visa fraud. " 

 

I wonder if "entering the US on H1B followed quickly by an application for AOS could be construed by the USCIS to be visa fraud", provided there is already an I-130 approval and a PD earlier than dates for filing? It concerns me because I might do AOS right away once I enter the US. To me, using H visa to enter and do AOS right after doesn't sound visa fraud, since H visa allows duel intent. What do you think then? Thx!

[issea 43]

Here are some background: 

F2A with PD 02/01/2017

The beneficiary is currently outside the US

Now the beneficiary (me) is in process of H1B visa

The future position start date is Oct. 1 and tentative entry to the US is end of September 

The beneficiary is thinking to file AOS after the entry (next day?)

 

Question: does USCIS construe it to be visa fraud?

 

[azblk 338]

5 hours ago, issea said:

Here are some background: 

F2A with PD 02/01/2017

The beneficiary is currently outside the US

Now the beneficiary (me) is in process of H1B visa

The future position start date is Oct. 1 and tentative entry to the US is end of September 

The beneficiary is thinking to file AOS after the entry (next day?)

 

Question: does USCIS construe it to be visa fraud?

 

No H1-B is a dual intent visa and as such you can AOS whenever you want.

[issea 43]

18 hours ago, azblk said:

No H1-B is a dual intent visa and as such you can AOS whenever you want.

That is what I thought. But why the VJwiki entry says it might be construed to be visa fraud if marriage and AOS take place quickly after the entry?

[azblk 338]

23 minutes ago, issea said:

That is what I thought. But why the VJwiki entry says it might be construed to be visa fraud if marriage and AOS take place quickly after the entry?

First of getting married in itself means nothing. So if you are worried about it you can get married and then wait to file AOS. I think that makes more sense than filing right away because if you file or get approved 2 years after getting married. You get a ten year green card and wont have to deal with ROC.

[issea 43]

49 minutes ago, azblk said:

First of getting married in itself means nothing. So if you are worried about it you can get married and then wait to file AOS. I think that makes more sense than filing right away because if you file or get approved 2 years after getting married. You get a ten year green card and wont have to deal with ROC.

In my situation, I don't have the marriage need since I am married already. I am just concerned with the immediate action of AOS after the entry with an H1B visa. If it is suggested to postpone the AOS for a while (whether 90 days or longer) after the entry, then I would think twice for whether doing AOS or consular processing when I am in the US at that time. 

Edited April 5, 2018 by issea

[azblk 338]

18 minutes ago, issea said:

In my situation, I don't have the marriage need since I am married already. I am just concerned with the immediate action of AOS after the entry with an H1B visa. If it is suggested to postpone the AOS for a while (whether 90 days or longer) after the entry, then I would think twice for whether doing AOS or consular processing when I am in the US at that time. 

So you are married to a US citizen but you are trying to choose between ding consular processing or entering the US with a H1 visa then doing AOS immediately after entering? What is the urgency of adjusting immediately? Do you have no intention of working for H1 sponsor?

[issea 43]

1 minute ago, azblk said:

So you are married to a US citizen but you are trying to choose between ding consular processing or entering the US with a H1 visa then doing AOS immediately after entering? What is the urgency of adjusting immediately? Do you have no intention of working for H1 sponsor?

I am married to LPR not USC, so I have to wait for my PD to become current. For now, it seems there is 10-12 month or more before my PD to be current. I don't have the urgency of AOS in terms of legal stay. But my personal preference is to receive a GC in a shorter timeframe if that is possible. I could maintain the H status even if AOS is submitted. That I asked my employer for the H visa (which is cap-exempt) is mainly due to the fact that I already have the immigrant intent and there is no other visa that I can use to enter the US for work. I discussed this issue with my employer and they decided to petition me for the H visa. 

[azblk 338]

3 minutes ago, issea said:

I am married to LPR not USC, so I have to wait for my PD to become current. For now, it seems there is 10-12 month or more before my PD to be current. I don't have the urgency of AOS in terms of legal stay. But my personal preference is to receive a GC in a shorter timeframe if that is possible. I could maintain the H status even if AOS is submitted. That I asked my employer for the H visa (which is cap-exempt) is mainly due to the fact that I already have the immigrant intent and there is no other visa that I can use to enter the US for work. I discussed this issue with my employer and they decided to petition me for the H visa. 

Well you cant file AOS until your PD is current. So you still enter with H1-B and wait for PD to become current then file for AOS. But back to the original question, No it cant be misconstrued as fraud since H1-B is dual intent and there is no minimum time you would have spend in H1 status before you can adjust.

[issea 43]

1 minute ago, azblk said:

Well you cant file AOS until your PD is current. So you still enter with H1-B and wait for PD to become current then file for AOS. But back to the original question, No it cant be misconstrued as fraud since H1-B is dual intent and there is no minimum time you would have spend in H1 status before you can adjust.

Yes, I could if presenting in the US as of March 1st 2018, and this is based on the VB Chart B, dates of filing for AOS. For the spouse of LPR, you could file AOS when PD is current in Chart B and USCIS accept to use that Chart but it would only be adjudicated once the PD becomes current in Chart A.