Does this constitute visa fraud?

[peruvian princess 0]

When my fiancée last entered the (tourist Visa) US in November she was stopped and questioned by immigration. It was her third visit here in a year. She had previously stayed her for between a week and two months. The immigration agent saw things that gave him the impression she was thinking of getting married on the trip. He saw her engagement ring, pictures from her engagement party when we got engaged ect. By sheer luck the agent let her go through but marked her I-94 with no AOS on the front and on the back only approved her for a 60 day stay and marked it no maos, no cos, eos. He told her not to get married on this trip. She stayed for the 60 days and when she was due to leave she didn’t go home. We thought that she would not be allowed to come back in and we panicked. After three and a half months we decided to just get married at the last minute. That was two weeks ago. We then saw an immigration attorney who said we may not have that big a problem. He said that because she was here over 90 days before we decided to get married it shows that she did not come here with the intent to get married (we did not plan to get married on this visit even though we were engaged) and as long as she does not overstay more than 180 days she is not in jeopardy of loosing her ability to AOS. He also said that the no AOS, COS, ect does not really mean anything because they should not have let her in if they thought she was committing visa fraud. Since they granted her entrance we are OK. Also that they can not tell someone that they can not get married. He said that it was just luck that they let her in. We are planning to file a AOS and all the accompanying paperwork. Does this seem plausible? Can we file for an adjustment of status as she entered the country as my fiancée but merely to visit, overstayed because she panicked that we would not be able to see each other again for a long time, and then just decided to spontaneously get married? I hope this is a realistic plan. Any ideas or suggestions are really welcome. We have been together almost 2 years and have visited each other 7 or 8 times so there is TONS of evidence of a real relationship.

[Nik+Heather 121]

This isn't the first time I have heard of a CBP officer making notations like the ones you describe on someones I-94 or on their entrance stamp. Because of this, I would assume that they are somehow trained to do this, and that it must have an effect.

If nothing else, the officer has put a big huge red flag on her I-94, letting the AOS adjudicator know that he suspected intent, but that your fiancee told him that it was not the purpose of her trip to stay. Since she did overstay AND apply for AOS - a reasonable person might also assume that she lied, which is not a conclusion you want them to draw!

As she entered in November, and was given a stay of 60 days, she has not accrued more than 180 days of over stay, and therefore does not have a ban. She could return home, and come back with a CR-1 visa if you have any doubts.

Alternatively, you could seek out a second (third, fourth) opinion from another immigration attorney.

Also, this is the forum for adjustment from family based visas. All of us here got a visa for immigrating and are AOSing from that, you may find a completely different perspective in the AOS from other visas (including tourist) just below this one. I don't say this to make you feel unwelcome, but to let you know the bias of the answers you are likely to receive here.

[sachinky 465]

That "NO EOS/AOS/COS" (No extension of status/adjustment of status/continuation of status) on her I-94 shows that the CBP officer suspected that she might try and do something like this. Which you two just did.

IMO, it's a bad, BAD idea to try and AOS (I don't even know if it would be succesful with that stamped on her I-94). A lifetime ban for misrepresentation is not something you should take lightly.

However, you could always try applying for AOS, especially if your attorney thinks its possible.

Come back and let us know how it went, ya?

Edited March 26, 2010 by sachinky

[baron555 934]

When my fiancée last entered the (tourist Visa) US in November she was stopped and questioned by immigration. It was her third visit here in a year. She had previously stayed her for between a week and two months. The immigration agent saw things that gave him the impression she was thinking of getting married on the trip. He saw her engagement ring, pictures from her engagement party when we got engaged ect. By sheer luck the agent let her go through but marked her I-94 with no AOS on the front and on the back only approved her for a 60 day stay and marked it no maos, no cos, eos. He told her not to get married on this trip. She stayed for the 60 days and when she was due to leave she didn’t go home. We thought that she would not be allowed to come back in and we panicked. After three and a half months we decided to just get married at the last minute. That was two weeks ago. We then saw an immigration attorney who said we may not have that big a problem. He said that because she was here over 90 days before we decided to get married it shows that she did not come here with the intent to get married (we did not plan to get married on this visit even though we were engaged) and as long as she does not overstay more than 180 days she is not in jeopardy of loosing her ability to AOS. He also said that the no AOS, COS, ect does not really mean anything because they should not have let her in if they thought she was committing visa fraud. Since they granted her entrance we are OK. Also that they can not tell someone that they can not get married. He said that it was just luck that they let her in. We are planning to file a AOS and all the accompanying paperwork. Does this seem plausible? Can we file for an adjustment of status as she entered the country as my fiancée but merely to visit, overstayed because she panicked that we would not be able to see each other again for a long time, and then just decided to spontaneously get married? I hope this is a realistic plan. Any ideas or suggestions are really welcome. We have been together almost 2 years and have visited each other 7 or 8 times so there is TONS of evidence of a real relationship.

Why would you purposefully violate the terms of the visa? Anyway, whatever the lawyer says may or may not be true. You may or may not be allowed to AOS. Just have a backup plan in place in case she is denied the GC and given a ban for a number of years for her overstay of the visa. Definately an immigration lawyer is required for this case. Good luck.

(Personally, yes this is visa fraud, clear and simple, but you may be able to wiggle out of it.)

[john_and_marlene 162]

Such annotations by CBP on the I-94 carry no legal weight. There is no statute that prohibits you from adjusting status due to that annotation. Adjustment of status will not be denied based on that annotation.

[Bobby+Umit 161]

Such annotations by CBP on the I-94 carry no legal weight. There is no statute that prohibits you from adjusting status due to that annotation. Adjustment of status will not be denied based on that annotation.

Correct

The annotation is not binding to USCIS. However, it could cause USCIS to look more closely at the application, so the OP should be prepared to answer any questions that arise due to this.

As long as there is no "misrepresentation" found (fraud), then no issues.

[Bernie C 24]

I dont understand the statement below from your attorney:

"He said that because she was here over 90 days before we decided to get married it shows that she did not come here with the intent to get married"

The length of time has no bearing and shows no proof that there was not intent.

You could have decided and then just waited. See what I'm saying.

Intent is open to interpretation and argument. A good "prosecutor" would eat that up for lunch. Because you are married the burden would be on you to prove that there was not intent and that could be a difficult task.

Anyway - I hope things work out for you.

[Bobby+Umit 161]

I dont understand the statement below from your attorney:

"He said that because she was here over 90 days before we decided to get married it shows that she did not come here with the intent to get married"

The length of time has no bearing and shows no proof that there was not intent.

You could have decided and then just waited. See what I'm saying.

Intent is open to interpretation and argument. A good "prosecutor" would eat that up for lunch. Because you are married the burden would be on you to prove that there was not intent and that could be a difficult task.

Anyway - I hope things work out for you.

There is a lot of talk about the 30/60/90 rule.

If you aos within the 30 days of entry, fraud is presumed and the AOS is denied.

If you aos between the 30/60 days, the presumption of fraud can be overcome, basically, you can rebut it.

If you aos 90+ days after entry, there is no presumption of fraud.

Strangly - I could find no reference to it on the USCIS site nor can I find it in the USC code - I see some lawyers recommending it though.

However, coming to the US with the intent to marry cannot be held against you, and there is case law backing this up. As long as you do not have a bunch of adverse factors going against you, it will not hurt you to get married 30 days or 60 days of entry.

Will USCIS look more closely at your AOS if you do this, most likely, but I haven't seen it as a trend in my research.

With that said, if you come here on the VWP, you should AOS before the I-94 expires, because there is precident where the person filed AOS after the I-94 expired and was sent home. (it's built in to the VWP that you cannot contest the removal).

That case had very specific problems with it, but the feeling I got from it was the "no contest" rule trumps AOS rules - so don't risk it.

[baron555 934]

I take back my comments about this being visa fraud. That is not correct.

What you have done is a violation of the visa terms.

You need to send in a copy of the front and back side of your I-94 when you apply for AOS. It will be during this review that any "issues" (regardless of whether or not the CBP's annotations hold weight)come to light..

You WILL have a lot of explaining to do.....

and saying you were afraid will most likely not be a good excuse.

Edited March 26, 2010 by baron555

[Brother Hesekiel 2,236]

If asked at the POE whether or not the visitor plans to adjust status, and she responds with "no," and gets a "No AOS" remark in her passport to me, clearly and without the shadow of a doubt, is a documentation of misrepresentation when trying to adjust status nonetheless during that very visit.

As the I.O. looking at the AOS file, I would presume that the petitioner declared at the POE that she wouldn't attempt to adjust status, when questioned about it. If she does adjust, she lied at the POE.

My two cents.

[Keysersoze 0]

When my fiancée last entered the (tourist Visa) US in November she was stopped and questioned by immigration. It was her third visit here in a year. She had previously stayed her for between a week and two months. The immigration agent saw things that gave him the impression she was thinking of getting married on the trip. He saw her engagement ring, pictures from her engagement party when we got engaged ect. By sheer luck the agent let her go through but marked her I-94 with no AOS on the front and on the back only approved her for a 60 day stay and marked it no maos, no cos, eos. He told her not to get married on this trip. She stayed for the 60 days and when she was due to leave she didn’t go home. We thought that she would not be allowed to come back in and we panicked. After three and a half months we decided to just get married at the last minute. That was two weeks ago. We then saw an immigration attorney who said we may not have that big a problem. He said that because she was here over 90 days before we decided to get married it shows that she did not come here with the intent to get married (we did not plan to get married on this visit even though we were engaged) and as long as she does not overstay more than 180 days she is not in jeopardy of loosing her ability to AOS. He also said that the no AOS, COS, ect does not really mean anything because they should not have let her in if they thought she was committing visa fraud. Since they granted her entrance we are OK. Also that they can not tell someone that they can not get married. He said that it was just luck that they let her in. We are planning to file a AOS and all the accompanying paperwork. Does this seem plausible? Can we file for an adjustment of status as she entered the country as my fiancée but merely to visit, overstayed because she panicked that we would not be able to see each other again for a long time, and then just decided to spontaneously get married? I hope this is a realistic plan. Any ideas or suggestions are really welcome. We have been together almost 2 years and have visited each other 7 or 8 times so there is TONS of evidence of a real relationship.

Yes bro, go ahead and file that, DO NOT STAY a part, waiting is so pointless and hurts really bad. Be with her in the country and you can always overcome all the problems together! If i had a chance i would do it

[peruvian princess 0]

Thank you very much for your answers. So to be sure I have this correct, it is best to AOS before the I-94 expires. If she was given 60 days to stay on the I-94 then didn’t it already expire? Or is the I-94 good for 180 days anyway even if the writing sais 60 days? My wife has been here 120 days exactly so if we apply for AOS now we would be ok I believe. At what point does the clock stop on the 180 Days? Is it when the application is excepted or at some other point in the process? I can’t imagine we would be able to fully complete the AOS by 60 days from now. What is the point we need to get to be sure not to have a ban for overstay?

[Nik+Heather 121]

A ban is triggered when she leaves the US after staying beyond 180 days from her legally permitted stay. So if she was given 60 days, then if she leaves after 60+180=240 days from entry, she will trigger a ban. There is a longer ban if she stays for a year over.

[john_and_marlene 162]

Thank you very much for your answers. So to be sure I have this correct, it is best to AOS before the I-94 expires. If she was given 60 days to stay on the I-94 then didn’t it already expire? Or is the I-94 good for 180 days anyway even if the writing sais 60 days? My wife has been here 120 days exactly so if we apply for AOS now we would be ok I believe. At what point does the clock stop on the 180 Days? Is it when the application is excepted or at some other point in the process? I can’t imagine we would be able to fully complete the AOS by 60 days from now. What is the point we need to get to be sure not to have a ban for overstay?

Overstay days stop with the receipt of the I-485.

If the I-485 is received before the I-94 expires, no overstay is accrued. If the adjustment of status is subsequently denied, you will be given time to leave the country before unauthorized stay begins adding overstay days again.

If the I-485 is received after the I-94 expires, overstay days will stop accruing when it is received. However, if the adjustment of status is subsequently denied, the overstay will revert back to the expiration of the I-94 which may trigger a ban on exit that would not have accrued if you had left the U.S. rather than filing for adjustment.