Adjustment of status on tourist visa

[simaysimon 30]

I was wondering if I am able to file for my parents’ permanent residency while they are in the U.S on tourist visa.

[Josm 30]

once you enter the usa you must wait 90 days to file a petition to do so before it would be considered fraud

[Lucky2Lucky 2,526]

3 minutes ago, Wals said:

once you enter the usa you must wait 90 days to file a petition to do so before it would be considered fraud

That is completely incorrect there is no such rule. If your parents entered the country with no intent to adjust status then yes you can file for them pending you meet the financial requirements. They also must be okay without be able to leave the US for a long period of time.

[Sparkle Sparkle 914]

16 minutes ago, Wals said:

once you enter the usa you must wait 90 days to file a petition to do so before it would be considered fraud

Not true

[Josm 30]

13 minutes ago, Luckycuds said:

That is completely incorrect there is no such rule. If your parents entered the country with no intent to adjust status then yes you can file for them pending you meet the financial requirements. They also must be okay without be able to leave the US for a long period of time.

Spoiler

 

 

Edited June 14, 2020 by Wals

[Crazy Cat 41,845]

27 minutes ago, Wals said:

once you enter the usa you must wait 90 days to file a petition to do so before it would be considered fraud

Not true.....there is no USCIS 90 day rule.....

Edited June 14, 2020 by Lucky Cat

[Josm 30]

21 minutes ago, Luckycuds said:

That is completely incorrect there is no such rule. If your parents entered the country with no intent to adjust status then yes you can file for them pending you meet the financial requirements. They also must be okay without be able to leave the US for a long period of time.

 

it would be worth investigating well before making a disqualification

On September 1, 2017, the U.S. Department of State (DOS) made important updates to its Foreign Affairs Manual (FAM) at 9 FAM 302.9. Specifically, the DOS replaced its former “30/60 day rule” with a “90 day rule.”

Under the previous rule, the DOS's position was that certain actions within 30 days of entry that are inconsistent with one's nonimmigrant status would carry with it a presumption that the alien made a material misrepresentation in applying for his or her visa, thus triggering inadmissibility under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA). Inconsistent conduct outside of the 30 day window but within 60 days would not trigger an automatic presumption, but would subject the case to higher scrutiny. Under DOS guidance, inconsistent conduct outside of 60 days would not form a basis for an inadmissibility determination for willful misrepresentation under the old DOS rules.

Under the new 90 day rule, the DOS will consider certain inconsistent conduct within 90 days of entry to carry with it a presumption of willful misrepresentation in procuring a nonimmigrant visa. Conduct outside of the 90 day window will not be considered, in the eyes of DOS, to form the basis of an inadmissibility determination for willful misrepresentation of a material fact.

Both the old 30/60 day rule and the new 90 day rule most often arise in cases involving nonimmigrant visitors. It is important to note that, like the 30/60 day rule, the 90 day rule is only binding on DOS officers and not on officers of the Department of Homeland Security (DHS). The DHS, and namely the United States Citizenship and Immigration Services (USCIS), was not restricted from making section 212(a)(6)(C)(i) inadmissibility determinations based on conduct occurring outside of the purview of the 30/60 day rule. However, as we discussed in a detailed article, the USCIS took the 30/60 day rule under advisement, and the Administrative Appeals Office (AAO) has applied it often in unpublished decisions.

In this article, we will explain the new 90 day rule by referring to both the FAM and a DOS Cable on the issue. To learn about how the USCIS applied the old 30/60 day rule, which provides clues as to how it may take the new 90 day rule under advisement, please see our updated article on that subject [see article]. To learn about the old 30/60 day rule itself, please see our archived article

 

[Crazy Cat 41,845]

5 minutes ago, Wals said:

 

it would be worth investigating well before making a disqualification

On September 1, 2017, the U.S. Department of State (DOS) made important updates to its Foreign Affairs Manual (FAM) at 9 FAM 302.9. Specifically, the DOS replaced its former “30/60 day rule” with a “90 day rule.”

Under the previous rule, the DOS's position was that certain actions within 30 days of entry that are inconsistent with one's nonimmigrant status would carry with it a presumption that the alien made a material misrepresentation in applying for his or her visa, thus triggering inadmissibility under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA). Inconsistent conduct outside of the 30 day window but within 60 days would not trigger an automatic presumption, but would subject the case to higher scrutiny. Under DOS guidance, inconsistent conduct outside of 60 days would not form a basis for an inadmissibility determination for willful misrepresentation under the old DOS rules.

Under the new 90 day rule, the DOS will consider certain inconsistent conduct within 90 days of entry to carry with it a presumption of willful misrepresentation in procuring a nonimmigrant visa. Conduct outside of the 90 day window will not be considered, in the eyes of DOS, to form the basis of an inadmissibility determination for willful misrepresentation of a material fact.

Both the old 30/60 day rule and the new 90 day rule most often arise in cases involving nonimmigrant visitors. It is important to note that, like the 30/60 day rule, the 90 day rule is only binding on DOS officers and not on officers of the Department of Homeland Security (DHS). The DHS, and namely the United States Citizenship and Immigration Services (USCIS), was not restricted from making section 212(a)(6)(C)(i) inadmissibility determinations based on conduct occurring outside of the purview of the 30/60 day rule. However, as we discussed in a detailed article, the USCIS took the 30/60 day rule under advisement, and the Administrative Appeals Office (AAO) has applied it often in unpublished decisions.

In this article, we will explain the new 90 day rule by referring to both the FAM and a DOS Cable on the issue. To learn about how the USCIS applied the old 30/60 day rule, which provides clues as to how it may take the new 90 day rule under advisement, please see our updated article on that subject [see article]. To learn about the old 30/60 day rule itself, please see our archived article

 

The DOS (Department of State) does not conduct Adjustment of Status interviews.........that is the job of USCIS.  I have never seen an Adjustment of Status case denied due to this "rule".  

Edited June 14, 2020 by Lucky Cat

[Just Paul 4,595]

37 minutes ago, simaysimon said:

I was wondering if I am able to file for my parents’ permanent residency while they are in the U.S on tourist visa.

If you are a citizen you can file petitions on their behalf at any time.  If they are in the US now or when it is approved then file an AOS for them

[Allaboutwaiting 2,503]

From the USCIS policy manual, regarding the adjudication of inadmissibility:

The U.S. Department of State’s 90-Day Rule

DOS developed a 90-day “rule” to assist consular officers in evaluating willful misrepresentation in cases involving an applicant who violated his or her nonimmigrant status or whose conduct is inconsistent with representations made to either the consular officer at the time of the visa application or to the immigration officer at the port of entry. The DOS 90-day rule creates a presumption of willful misrepresentation if an applicant engages in such conduct within 90 days of admission to the United States. 

Although referred to by DOS as a “rule” in its Foreign Affairs Manual (FAM), the 90-day rule is not a regulation. It is DOS guidance to its officers, and as such, the 90-day rule is not binding on USCIS officers. However, USCIS officers must examine all of the factors in an applicant’s case.

Edited June 14, 2020 by Allaboutwaiting

[geowrian 22,337]

The 90 day rule myth is still alive and doing well...

No, it is not an issue for AOS per Matter of Battista and Matter of Cavazos for an IR of a USC. Preconceived intent is not a sole basis for denial here.

 

Edit: Also, when copy/pasting text, please provide the source where it was found (even a link to the webpage).

Edited June 14, 2020 by geowrian

[Josm 30]

10 minutes ago, geowrian said:

The 90 day rule myth is still alive and doing well...

No, it is not an issue for AOS per Matter of Battista and Matter of Cavazos for an IR of a USC. Preconceived intent is not a sole basis for denial here.

 

Edit: Also, when copy/pasting text, please provide the source where it was found (even a link to the webpage).

it's not a myth it's a rule

 

https://fam.state.gov/FAM/09FAM/09FAM030209.html#M302_9_4_B_3

[geowrian 22,337]

4 minutes ago, Wals said:

it's not a myth it's a rule

 

https://fam.state.gov/FAM/09FAM/09FAM030209.html#M302_9_4_B_3

That is the Department of State's (DOS) Foreign Affairs Manual (FAM). AOS is performed by USCIS (DHS), not DOS. They do not follow the same policies.

 

That's like going to the DMV and being told that you need to provide a birth certificate to get an SSN.

The SSA determines eligibility for an SSN, not the DMV.

(Maybe not the best example as I'm unsure if a BC is needed for an SSN or not off-hand...the point is they don't make the rules for obtaining an SSN).

Edited June 14, 2020 by geowrian

[Josm 30]

5 minutes ago, geowrian said:

Ese es el Manual de Asuntos Exteriores (FAM) del Departamento de Estado (DOS). El AOS lo realiza USCIS (DHS), no DOS. No siguen las mismas políticas.

 

Es como ir al DMV y que le digan que debe proporcionar un certificado de nacimiento para obtener un SSN.

La SSA determina la elegibilidad para un SSN, no el DMV.

not necessarily uscis can verify that the applicant has not violated the rules of entry to the country, example if you when entering poe tells the immigration officer that you are coming from a tourist and the next day you file a petition for residence as that is called

[geowrian 22,337]

1 minute ago, Wals said:

not necessarily uscis can verify that the applicant has not violated the rules of entry to the country, example if you when entering poe tells the immigration officer that you are coming from a tourist and the next day you file a petition for residence as that is called

  1) Please do not edit the text of somebody's quote. This is prohibited by the the TOS. You may have an auto-translator doing it.

 

2) Can you provide an example of where preconceived immigrant intent was a reason for denial of AOS as the IR of a USC?

Can you indicate how the OP's case materially differs from those in Matter of Battista or Matter of Cavazos so as to why those findings would not apply?

 

I'm actually a proponent that their is no blanket protection of intent due the above cases, but equities involved matter - and those clearly would not be an issue in this case IMO. There is also zero evidence presented that they actually lied about intent at POE...the only claimed issue is timing. The "rule" referenced above does not apply for USCIS adjudication of a benefit, so timing alone is not an issue.

 

Yes, a material misrepresentation at POE can still be an inadmissibility. But preconceived intent cannot be a sole reason for denial of AOS here, per the above BIA rulings.