Adjustment of status on tourist visa

[OrihimeandIchigo 216]

14 hours 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the USCIS took the 30/60 day rule under advisement, and the Administrative Appeals Office (AAO) has applied it often in unpublished decisions.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

 

Dang you took them to SCHOOL 🤣 lol Good find btw

[HRQX 4,145]

24 minutes ago, OrihimeandIchigo said:

Dang you took them to SCHOOL 🤣 lol Good find btw

Quite the opposite. From that same link @Wals quoted: http://myattorneyusa.com/dos-90-day-rule-for-presumption-of-misrepresentation "The 90 day rule, like the 30/60 day rule before it, is only binding guidance for officers of the DOS. Accordingly, the USCIS is not limited by the 90 day rule."

Edited June 15, 2020 by HRQX

[Unlockable 7,314]

23 minutes ago, OrihimeandIchigo said:

Dang you took them to SCHOOL 🤣 lol Good find btw

Umm... what he posted is wrong and does not apply to the OP's situation. Read the entire thread. That post he made is inaccurate for the OP.

Edited June 15, 2020 by Unlockable

[SusieQQQ 11,586]

4 hours ago, Duke & Marie said:

And back to the op question..

 

if they are currently in the country, yes they can apply to adjust.

 

 

Except that she isn’t a citizen, so no they can’t. 

[Crazy Cat 41,845]

7 minutes ago, SusieQQQ said:

Except that she isn’t a citizen, so no they can’t. 

Correct.  OP is not a citizen, and I'm not sure they are even in the US right now.   

[Carpe Vinum 2,327]

Reading this thread I thought I was on a Facebook immigration page for a second))))))

[JFH 12,190]

17 hours ago, Loren Y said:

, but your going to tell me this lady flew into town, met the love of her life, and decided to spend the rest of her life with this guy all within 8 hours? 

AOS is not exclusively for people who arrived as single people, met, fell in love and married all on the same visit. Any spouse of a USC can file AOS based on the marriage on any visit. Doesn’t matter if they have been married for 50 years or 50 hours. A spouse is a spouse. On any of my 40 VWP visits I could have changed my mind and stayed, even long after we married. I see a lot of mentionings on this forum about AOS from B-2 and VWP for “spontaneous marriages”. But the marriage doesn’t have to be spontaneous.  The decision to AOS must be spontaneous and not pre-planned. 
 

In the case you are referring to I’m tempted to agree that the AOS was probably planned but that’s irrelevant. But they didn’t necessarily just meet each other. Could have been dating for years. 

[Duke & Marie 1,389]

6 hours ago, SusieQQQ said:

Except that she isn’t a citizen, so no they can’t. 

Fair enough, my bad I failed to check... however it is interesting to note, he’s planning on becoming one soon looking at his post history.... 🤔 preplanning possibly, really wish this guy would answer if his parents are currently in the country

Edited June 15, 2020 by Duke & Marie

[Sunnyland 639]

13 minutes ago, Duke & Marie said:

Fair enough, my bad I failed to check... however it is interesting to note, he’s planning on becoming one soon looking at his post history.... 🤔 preplanning possibly, really wish this guy would answer if his parents are currently in the country

 

 

Yes for sure I would like to know  in what stage of the US citizenship process the OP is right now. Are the parents in the US?  Little details that change the whole case.

[SusieQQQ 11,586]

2 minutes ago, Sunnyland said:

 

 

Yes for sure I would like to know  in what stage of the US citizenship process the OP is right now. Are the parents in the US?  Little details that change the whole case.

OP has already stated what stage he is in.

[simaysimon 30]

Thank you everybody for your answers. I am aware that I am not a citizen but am in the process. I have come to conclusion that it is possible and acceptable to do so if the intent was not to adjust status when they entered the country. Thanks again.

[Crazy Cat 41,845]

27 minutes ago, simaysimon said:

Thank you everybody for your answers. I am aware that I am not a citizen but am in the process. I have come to conclusion that it is possible and acceptable to do so if the intent was not to adjust status when they entered the country. Thanks again.

Are the parents in the US right now?  Yes or no?

[jan22 3,053]

First, I want to emphasize that the following is my opinion -- and only an opinion.

 

Having said that, as long as there is an Executive Order that prohibits some categories of immigration  (e.g., IR-5's, parents of US citizens), I suspect that USCIS will begin to look very carefully at adjustment applications for anyone in that category who got admitted on a tourist/visitor visa, regardless of whether they waited 90 days or not.  It could easily be assumed that the tourist entry was an attempt to circumvent the immigration prohibition.  This could lead to more refusals at the Ports of Entry and/or denials of AOS.  If not, the floodgates of AOS applications will pour open in those categories. 

 

So, as long as the EO lasts (if it is extended later this month), I would think long and hard about trying this.  Of course, if there is a major change in circumstances that can be documented, that is different.  Otherwise, it will be hard to convince USCIS that a sudden decision to leave behind everything on the spur of the moment only occurred after entry into the US, when the pathway to immigration would be blocked but for this sudden change of heart.

[Allaboutwaiting 2,503]

1 hour ago, Lucky Cat said:

Are the parents in the US right now?  Yes or no?

That's the key question that has not been answered yet.

[SusieQQQ 11,586]

22 minutes ago, jan22 said:

First, I want to emphasize that the following is my opinion -- and only an opinion.

 

Having said that, as long as there is an Executive Order that prohibits some categories of immigration  (e.g., IR-5's, parents of US citizens), I suspect that USCIS will begin to look very carefully at adjustment applications for anyone in that category who got admitted on a tourist/visitor visa, regardless of whether they waited 90 days or not.  It could easily be assumed that the tourist entry was an attempt to circumvent the immigration prohibition.  This could lead to more refusals at the Ports of Entry and/or denials of AOS.  If not, the floodgates of AOS applications will pour open in those categories. 

 

So, as long as the EO lasts (if it is extended later this month), I would think long and hard about trying this.  Of course, if there is a major change in circumstances that can be documented, that is different.  Otherwise, it will be hard to convince USCIS that a sudden decision to leave behind everything on the spur of the moment only occurred after entry into the US, when the pathway to immigration would be blocked but for this sudden change of heart.

Case law quoted above indicates this cannot be sole reason for denial. That said....

What I am guessing is going to be more prevalent once travel resumes if that EO stays (or maybe even if not), is more close questioning by CBP at entry about intent. Resulting in (1) more entry denials, or (2) more AOS denials for misrepresentation for those who lied to cbp. The case quoted about this precedent was interesting to me as while I have always thought CBP records main points of entry conversation, others have said they don’t - but they clearly do.  Misrepresentation may carry a ban on entry as consequence so it’s a pretty serious denial.
 

 

 

2 minutes ago, Allaboutwaiting said:

That's the key question that has not been answered yet.

It’s not really key unless OP will take his oath before their stay is up ...or unless they plan to enter and “change their minds” after he is a citizen 

 

 

Edited June 15, 2020 by SusieQQQ