AOS from F-1 on OPT to GC

[geowrian 22,338]

I'll try to see if I can clarify a few points. I was hesitant to respond as we are crossing over into activities that are not legal options for the OP.

 

Entering on a non-immigrant visa (NIV) with intent to immigrate (barring those few NIVs that allow it, like K/L/H/O visas) is prohibited under INA 212(a)(7)(A)(i)(I). See below:

https://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title8-section1182&num=0&edition=prelim

Quote

(a) Classes of aliens ineligible for visas or admission

Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

...

(7) Documentation requirements

(A) Immigrants

(i) In general

Except as otherwise specifically provided in this chapter, any immigrant at the time of application for admission-

(I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under section 1181(a) of this title, or

 

This covers the OP's case since they hold an F-1 visa. As such, they are inadmissible if they are intending to immigrate.

A related provision is INA 214(b), which covers immigrant intent, and why most NIVs are refused.

 

I think everybody is on the same page so far - entry with intent to immigrate is prohibited. This is why it is prohibited to advise or condone anybody doing so on this website.

 

Now for somebody already in the US, as the IR of a USC, preconceived intent is not a sole reason to deny AOS. The very short and oversimplified version of this is "intent is established at POE".

The details, if you dig into those 2 BIA cases noted, are more nuanced. It requires weighing the equities and merits of the case.

USCIS does not pursue preconceived intent as a result.

 

But if somebody were to say "When I was entering the country, I intended to stay", they could be facing issues still.

This is why I dislike using the term "forgiven" to describe this circumstance. Something so-called "forgiven" means the underlying act is not a bar for AOS purposes.

For example, the overstay of an IR of a USC. This act is not allowed under the INA, but it also is not a bar to AOS as the IR of a USC. Admitting to it would not be an issue as the underlying act is not a bar for AOS purposes.

The underlying act of entering with preconceived intent is prohibited. Whether that fact alone is a reason to deny AOS is a different matter than the above.

 

Then, obviously, are issues with misrepresentation if somebody is asked any questions either directly about intent, or to provide responses that attempt to curtail additional questioning regarding admissability.

 

So getting back to the OP's case...

It would still not be legal to enter with intent to AOS even if they are somehow not asked about intent at the border. The act of entering with intent alone is where there is fraud.

Anything involving AOS afterwards does not apply to the OP's case as they would have to violate law to get there.

Edited January 9, 2020 by geowrian

[moosers 0]

Thank you everyone for sharing their expertise in this topic. This was a learning lesson -- though there are a few who could have been more kind and less accusatory in their posts. I posted here looking for advice, not to be lynched for something I didn't realize was a legal issue. At no point was I advised, not by lawyers we've consulted (who have told us we need to get married before they'll be of much help), by my school, or through my independent research, not to leave the country simply for being engaged.

 

All of us on this board have had to navigate this process, and I hope for your sakes that your advisees had been kinder, and less judgemental than you have been. That said, I appreciate the wisdom and my fiancé and I will have to reconsider our plans.

 

[HRQX 4,145]

8 hours ago, moosers said:

We will be concurrently filing the I-130, I-130A, I-864...

He'll file the I-130 with your I-130A (indicating "consular processing" path) after you marry; online filing is available. The I-864 will be submitted later at the NVC step (after I-130 approval). You'll interview in Montreal for the IR-1/CR-1. Prior to the interview, you can wait in the US if you maintain a NIV status (F-1/OPT, etc.).

IR-1/CR-1 guide:

 

[igoyougoduke 1,676]

3 hours ago, Duke & Marie said:

Incorrect, immigrants enter into the country on an immigration visa.. the OP is not doing this... shes planning to enter the country on a non immigration visa with intent to get married and adjust, which is not permitted and classified as visa fraud 

 The fact that OP is currently a student and they can get married in 3 days or after 3 years or 5 years makes this very murkey. I dont see a reason why she cannot enter back in F1. She is on a valid student visa.  if OP had not posted any of this info and gone on with her life i dont think she will have any issues at border patrol. Intent is a murkey word.  

 

the fact that folks can enter on B1/B2 and later claim they fell in love and decided to get married makes this whole process murkey. How does one know they never had the intent of adjusting. ? No one takes the lie detector test.  isnt it all about convincing border patrol that they are visitors rather than settlers

Edited January 9, 2020 by Donald120383

[Duke & Marie 1,389]

4 minutes ago, Donald120383 said:

 The fact that OP is currently a student and they can get married in 3 days or after 3 years or 5 years makes this very murkey. I dont see a reason why she cannot enter back in F1. She is on a valid student visa.  if OP had not posted any of this info and gone on with her life i dont think she will have any issues at border patrol. Intent is a murkey word.  

 

the fact that folks can enter on B1/B2 and later claim they fell in love and decided to get married makes this whole process murkey. How does one know they never had the intent of adjusting. ? No one takes the lie detector test.  isnt it all about convincing border patrol that they are visitors rather than settlers

Murkey or not, the rules are pretty straight forward, you’re not permitted to enter on a non immigration visa with intent to marry and adjust, if that’s your plan it should be a entry on k1.. 

 

we know now she has intent because she stated that was her plan. 

 

It’s actually about telling the truth... those that promote lying to POE officers due To lack of lye detectors are the people who are making it harder for those following the rules and are the people that deserve to be caught and banned. 

[Ryan H 3,834]

***Thread closed to additional discussion per the below quoted provision of the TOS; do not restart this thread.***

 

By way of example, and not as a limitation, you agree that when using the Service, you will not:

• Condone or instruct, either directly or indirectly, others on how to commit fraudulent or illegal immigration activities in any way, shape, manner or method.