im an american citizen

[lifestylediv_ 0]

so i need help, i am an american citizen, i was born in america, but lived almost my whole life in portugal, now i want to go back to the USA with my husband which is portuguese, can we enter the usa with an ESTA (for him) and start his green card process already there ?

[ineedadisplayname 498]

19 minutes ago, meliy_ferreira said:

so i need help, i am an american citizen, i was born in america, but lived almost my whole life in portugal, now i want to go back to the USA with my husband which is portuguese, can we enter the usa with an ESTA (for him) and start his green card process already there ?

I mean technically you could, but that is fraud since you had intent before entering to adjust his status....

 

Since you are in Portugal with him you might be able to do direct consular filing that would reduce your wait time I believe.

 

Hope you did file taxes in the US and also you will need to show intent to re-establish domicile in the US.

[SalishSea 17,835]

2 hours ago, meliy_ferreira said:

so i need help, i am an american citizen, i was born in america, but lived almost my whole life in portugal, now i want to go back to the USA with my husband which is portuguese, can we enter the usa with an ESTA (for him) and start his green card process already there ?

No, you cannot.   That is 100% fraud.   You need to petition him for an immigrant visa.   Read the guides.

[Ontarkie 14,226]

~~Moved to IR1/CR1 P&P, from Bringing Family of USC- as spousal visa processing questions are discussed here.~~

[Cathi 5,755]

No. Entering the the US with VWP or B1/B2 with the INTENT to STAY and adjust status, is visa fraud and will result in a permanent ban from the US. You must do consular processing.

[pushbrk 12,894]

Click on the word Guides at the top of any page here.  Direct Consular Filing is for special circumstances only, not just "wanting".

[SansTortoise 24]

4 hours ago, Cathi said:

No. Entering the the US with VWP or B1/B2 with the INTENT to STAY and adjust status, is visa fraud and will result in a permanent ban from the US. You must do consular processing.

 

So, this technically isn’t true. BIA has held on at least three occasions that pre-conceived intent isn’t fraud or misrepresentation and does not subject an individual to the lifetime ban. There’s even a precedent where it reversed an immigration judge and ordered them to grant LPR status to a spouse who entered on B1/B2 with the intent to adjust (Link for anyone interested: https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/17/2750.pdf)

 

There’s still very good reasons not to do it, though: first and foremost it’s a lot easier to commit misrepresentation when you have pre-conceived intent (i.e. "I’m leaving in 2 weeks!" would subject you to a lifetime ban if you knew that to be false when you said it.)

 

That and no one wants to go before an immigration judge. It’s not a great place to be. 

 

The BIA cases on this are worth mentioning though since there is a legal distinction in the eyes of immigration judges between pre-conceived intent and fraud, and people have thrown around the latter word a few times.

Edited 12 hours ago by SansTortoise

[OldUser 6,694]

7 hours ago, SansTortoise said:

 

So, this technically isn’t true. BIA has held on at least three occasions that pre-conceived intent isn’t fraud or misrepresentation and does not subject an individual to the lifetime ban. There’s even a precedent where it reversed an immigration judge and ordered them to grant LPR status to a spouse who entered on B1/B2 with the intent to adjust (Link for anyone interested: https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/17/2750.pdf)

 

There’s still very good reasons not to do it, though: first and foremost it’s a lot easier to commit misrepresentation when you have pre-conceived intent (i.e. "I’m leaving in 2 weeks!" would subject you to a lifetime ban if you knew that to be false when you said it.)

 

That and no one wants to go before an immigration judge. It’s not a great place to be. 

 

The BIA cases on this are worth mentioning though since there is a legal distinction in the eyes of immigration judges between pre-conceived intent and fraud, and people have thrown around the latter word a few times.

Good luck to anybody trying to pull this off with new administration coming in January. Every application will be studied under microscope to see if it's squeaky clean. Any slight suspicion of misrep - you'll have to explain long and hard how it wasn't your intent. You're showing decision from 1980. Times and laws changed since then.

Edited 4 hours ago by OldUser

[SansTortoise 24]

3 minutes ago, OldUser said:

Good luck to anybody trying to pull this off with new administration coming in January. Every application will be studied under microscope to see if it's squeaky clean. Any slight suspicion of misrep - you'll have to explain long and hard how it wasn't your intent. You're showing decision from 1980. Times and laws changed since then.

BIA precedents from the 80s are still binding on immigration judges absent a precedent reversing. There’s binding circuit court rulings from the 90s also making clear that pre-conceived intent does not trigger an automatic lifetime ban. The reason there aren’t more recent ones is that it’s settled law the immigration judges and USCIS follow, so it doesn’t get to BIA.

 

Like I said, there’s many practical reasons not to enter with pre-conceived intent: the politics of it is certainly is one of them. As is the fact that no one wants to win in an administrative tribunal

 

But it’s also not correct to say it’s fraud and subjects someone to the lifetime ban in itself. It’s worth making the distinction when responding to questions since the law does make it.