AOS while on B1/B2 Visa

[Linh Tran 0]

Hi everyone. 

 

I am a Canadian citizen. Last November, I went to Las Vegas and got married to my husband, who is USC. After 2 weeks, I went back to Canada. 

 

I went to the US again at Christmas time. Because I hold a Nexus, so CPB officer didn't ask anything about my vacation, only "do you bring any food items?" then I was good to go. Now after a month, me and my husband decided that we just file AOS. But I heard that it has 90 day rule??? 

 

Just want to make sure is possible to file AOS now or do we have to wait for 90 days? 

 

Thank you in advance. 

[Crazy Cat 41,811]

There is no 90 day rule.  File away!!!  Just be aware of the travel and work restrictions.

 

Step-by-Step Guide on Filing an I-130 for a Spouse Inside the US - US Immigration & Visa Guides - VisaJourney

Edited January 20, 2023 by Crazy Cat

[da95826 387]

22 hours ago, Linh Tran said:

Now after a month, me and my husband decided that we just file AOS. But I heard that it has 90 day rule??? 

It would be best to wait for 60 to 90 days after entry to avoid USCIS to automatically assume you mispresented the reason for entering the USA i.e. entering the USA to stay instead of coming to visit. 

 

[Crazy Cat 41,811]

22 minutes ago, da95826 said:

It would be best to wait for 60 to 90 days after entry to avoid USCIS to automatically assume you mispresented the reason for entering the USA i.e. entering the USA to stay instead of coming to visit. 

 

Why?  There is no reason to wait.  There is no 60 or 90 day rule for USCIS.  Intent is determined at the border when the person enters the US.  Can you post a link to an Adjustment of Status case which was denied due to applying prior to 90 days?   Many, many, many VJ members have adjusted status after entering as a visitor.

 

I agree that entering the US as a visitor with the intent to stay and adjust status is visa fraud.  The OP's post doesn't show intent to AOS before entering.

Edited January 21, 2023 by Crazy Cat

[da95826 387]

8 minutes ago, Crazy Cat said:

Why?  There is no reason to wait.  There is no 60 or 90 day rule for USCIS.  Intent is determined at the border when the person enters the US.  Can you post a link to an Adjustment of Status case which was denied due to applying prior to 90 days?   Many, many, many VJ members have adjusted status after entering as a visitor.

I am surprised by your response. I have seen multiple immigration attorneys advise against filing for many immigration benefits within 60 days of entering the USA on a visit visa or on visa waiver. USCIS appears to have a policy that will assume you entered the US under false pretense, and you will need to go on to prove you did not.

 

https://www.immigrationhelp.org/learning-center/90-day-rule

What Is the 90-Day Rule?

U.S. Citizenship and Immigration Services (USCIS) uses the 90-day rule when assessing immigration applications. When a temporary visa holder marries or applies for a green card within 90 days of entry to the United States, USCIS assumes that the applicant misrepresented their original intentions. Most temporary visas are single-intent. This means that the visa holder declared that they only intended to use their visa for one specific purpose. Often, this purpose is tourism, business, or study. After some time, the visa holder must leave the country.

The 90-day rule applies to those who use the Visa Waiver Program/ESTA or enter the U.S. with a B, F, J, M, Q, or TN visa. The U.S. Department of State’s Foreign Affairs Manual (FAM) classifies these visas as nonimmigrant visas. These are conditional, meaning they do not allow you to stay in the U.S. permanently.

So if you marry or apply for a green card less than 90 days after your arrival, USCIS may have an issue. Misrepresenting your original intentions can seriously hurt your chances of getting a green card.

[Crazy Cat 41,811]

Attorneys give inaccurate information quite often.  Show me a case where USCIS denied an Adjustment of Status for presumed immigrant intent.  Entering the US as a visitor with the intent to adjust status is fraud.  Why would waiting 90 days change the intent a person had when he/she entered the US?  

 The 90 days rule is a Department of State rule.  They do not approve adjustments of status.

 

Edited January 21, 2023 by Crazy Cat

[Crazy Cat 41,811]

Tourist Visa - Adjust Status and 90 day rule - Need help - Adjustment of Status from Work, Student, & Tourist Visas - VisaJourney

Planning to do a concurrent filing before 90 days with some valid reasons. Please advise - Adjustment of Status from Work, Student, & Tourist Visas - VisaJourney

90 Day Rule F1 AOS Filing Question - Adjustment of Status from Work, Student, & Tourist Visas - VisaJourney

90 day rule for TN to Green Card AOS - Adjustment of Status from Work, Student, & Tourist Visas - VisaJourney

 

@Dashinka 

Edited January 21, 2023 by Crazy Cat

[Boiler 45,445]

13 minutes ago, da95826 said:

I am surprised by your response. I have seen multiple immigration attorneys advise against filing for many immigration benefits within 60 days of entering the USA on a visit visa or on visa waiver. USCIS appears to have a policy that will assume you entered the US under false pretense, and you will need to go on to prove you did not.

 

https://www.immigrationhelp.org/learning-center/90-day-rule

What Is the 90-Day Rule?

U.S. Citizenship and Immigration Services (USCIS) uses the 90-day rule when assessing immigration applications. When a temporary visa holder marries or applies for a green card within 90 days of entry to the United States, USCIS assumes that the applicant misrepresented their original intentions. Most temporary visas are single-intent. This means that the visa holder declared that they only intended to use their visa for one specific purpose. Often, this purpose is tourism, business, or study. After some time, the visa holder must leave the country.

The 90-day rule applies to those who use the Visa Waiver Program/ESTA or enter the U.S. with a B, F, J, M, Q, or TN visa. The U.S. Department of State’s Foreign Affairs Manual (FAM) classifies these visas as nonimmigrant visas. These are conditional, meaning they do not allow you to stay in the U.S. permanently.

So if you marry or apply for a green card less than 90 days after your arrival, USCIS may have an issue. Misrepresenting your original intentions can seriously hurt your chances of getting a green card.

The trouble with this is that USCIS does not have a 90 day rule.

 

I have seen some people say 60 days, USCIS does not have a 60 day rule either.

 

The common feature is that these sources never link to this USCIS rule.

[Crazy Cat 41,811]

I cannot recall a single case when the USCIS officer even mentioned this subject during an Adjustment of Status interview....and we see hundreds of cases every year here on VJ.

The only misrep case during an AOS interview in my memory was when a lady was grilled in secondary inspection, then tried to adjust status.  They accused her of a misrep due to specific statements she made during the secondary inspection. 

[millefleur 5,046]

**Hijack and replies removed. Please keep all discussion related to your own question to your thread and do not piggyback off of existing threads.**

 

VJ Moderation

[Linh Tran 0]

Thank you guys! I didn't intent to file AOS at POE. But after doing long distance rls before and after the marriage, we just don't want to do it anymore.