URGENT: Need Advice on how to file AOS

[KIG0 0]

Situation

Myself: U.S. Citizen

Wife: Japanese National. Came to U.S. on J1 visa in 2007 and received a masters in education. Extend visa in 2009 for 18 months to work. No restrictions on Visa. Visa expires on December 31, 2010.

She has continuously lived in the U.S. since 2007, though has left multiple times for holidays. We currently live together in the U.S. She visited Japan for a week in early October. When she returned, I proposed to her and we were married in mid-October.

We completed our AOS, and are ready to mail it. We met with a lawyer yesterday to verify everything was in proper order, and he says that immigration officials will see my wife's last entry into the U.S. as an intent to marry. He says we should have waited 90 days after her arrival to get married.

Now he says we have two options. 1) She returns to Japan and we go through the consular process. Or 2) we file paper work demonstrating I will have hardships without her being physically present.

Is his advice accurate? This is frustrating. If we had known, she either would not have gone on vacation, or we would have delayed the marriage for 90 days.

[zooch76 9]

Yes, it is accurate. Even if it was not her intent to immigrate when she came back (since it sounds like you surprised her with the engagement) the IO will look at it as if it was.

[Harpa Timsah 13,258]

Lawyer is wrong. I think he is going off of an OLD "30/60/90" day rule, which does not matter any more.

Now, entering on a non-immigrant visa with intent to immigrate is illegal, but it has been said here many times that even if they suspect intent, that alone is not reason enough to deny your AOS.

They may ask you about it, but you can tell your story. Good luck.

Edit for zooch:

Even if the IO does look at it like that, that is not reason to deny.

Edited December 1, 2010 by Harpa Timsah

[JimVaPhuong 4,863]

Lawyer is wrong. I think he is going off of an OLD "30/60/90" day rule, which does not matter any more.

Now, entering on a non-immigrant visa with intent to immigrate is illegal, but it has been said here many times that even if they suspect intent, that alone is not reason enough to deny your AOS.

They may ask you about it, but you can tell your story. Good luck.

Edit for zooch:

Even if the IO does look at it like that, that is not reason to deny.

This is correct. Although there is anecdotal evidence that some IO's still use the 30/60/90 day rule to determine how much scrutiny to give an AOS application, they cannot deny solely for preconceived intent. They would need evidence of the intent, as well as evidence the applicant lied about their intent to an immigration officer.

KIGO, what the lawyer is advising is what he perceives as the path of least resistance. The subject of her intent at the time she entered might come up at the interview. Just be honest and it shouldn't be a problem.

[KIG0 0]

This is correct. Although there is anecdotal evidence that some IO's still use the 30/60/90 day rule to determine how much scrutiny to give an AOS application, they cannot deny solely for preconceived intent. They would need evidence of the intent, as well as evidence the applicant lied about their intent to an immigration officer.

KIGO, what the lawyer is advising is what he perceives as the path of least resistance. The subject of her intent at the time she entered might come up at the interview. Just be honest and it shouldn't be a problem.

Thanks all. We are going to another lawyer today (in 15 minutes actually) to ask about this.

I feel like we are doing everything by the book, despite possibly getting married too quickly. If we submit a normal AOS, and when we get interviewed, what is the chance that my wife will not be approved? Does anyone have experience with this?

[cookieandcream 10]

I don't think you should worry too much, I know a couple who got married just like you right after arrival and they just asked a few questions about it, but they were fine. good luck and congratulations!

[JimVaPhuong 4,863]

Thanks all. We are going to another lawyer today (in 15 minutes actually) to ask about this.

I feel like we are doing everything by the book, despite possibly getting married too quickly. If we submit a normal AOS, and when we get interviewed, what is the chance that my wife will not be approved? Does anyone have experience with this?

AOS is discretionary, so there's always a chance it won't be approved. However, they won't deny it solely for preconceived intent, even if they can prove the intent. The Battista case in 1987 put a stop to that. Battista succeeded in getting an AOS denial overturned because preconceived intent was the only reason it was denied, and the BIA determined that his family ties in the US outweighed that one negative factor. Since then, USCIS doesn't deny solely for preconceived intent. They will deny for material misrepresentation if they determine the applicant lied about their intent to an immigration officer, though.

In your case, I doubt it will even come up. First, your wife is not from a high fraud country. Second, she has been lawfully present in the US for years. She made a brief trip home, and reentered with the same visa, essentially just continuing her previous stay. If an IO was going to apply the 30/60/90 day rule then they would have to set the WayBack machine to 2007, because that's when she originally entered with her J1 visa. If they were going to suspect her intent for any reason then it would be because she returned with only a couple of months left on her visa, and not because of when she married. She could have married a long time ago, if that was her real intent.

[snapshaps 0]

AOS is discretionary, so there's always a chance it won't be approved. However, they won't deny it solely for preconceived intent, even if they can prove the intent. The Battista case in 1987 put a stop to that. Battista succeeded in getting an AOS denial overturned because preconceived intent was the only reason it was denied, and the BIA determined that his family ties in the US outweighed that one negative factor. Since then, USCIS doesn't deny solely for preconceived intent. They will deny for material misrepresentation if they determine the applicant lied about their intent to an immigration officer, though.

In your case, I doubt it will even come up. First, your wife is not from a high fraud country. Second, she has been lawfully present in the US for years. She made a brief trip home, and reentered with the same visa, essentially just continuing her previous stay. If an IO was going to apply the 30/60/90 day rule then they would have to set the WayBack machine to 2007, because that's when she originally entered with her J1 visa. If they were going to suspect her intent for any reason then it would be because she returned with only a couple of months left on her visa, and not because of when she married. She could have married a long time ago, if that was her real intent.

Here's a technical question that I've been wondering about. Assume that the IO does decide that there was immigration intent, but grants the green card anyways since intent alone is not enough for a denial (and there was no lying involved). Now, after a couple of years as a resident in the US, the green card holder moves with his wife back to his home country, voluntarily giving up his green card in the process. Will the IO's judgment cause the foreign national issues down the road in getting other non-immigrant visa's, or when using the VWP?

[Brother Hesekiel 2,235]

Not in any way, shape, or form.

[JimVaPhuong 4,863]

Here's a technical question that I've been wondering about. Assume that the IO does decide that there was immigration intent, but grants the green card anyways since intent alone is not enough for a denial (and there was no lying involved). Now, after a couple of years as a resident in the US, the green card holder moves with his wife back to his home country, voluntarily giving up his green card in the process. Will the IO's judgment cause the foreign national issues down the road in getting other non-immigrant visa's, or when using the VWP?

Immigrant intent is always a much bigger problem when trying to get a non-immigrant visa or enter the US with a non-immigrant entry pass. They don't need proof, in those cases. They just need the suspicion. A consular officer can deny a non-immigrant visa if, in their opinion, the applicant intends to immigrate. CBP can also deny entry to a non-immigrant for the same reason.

An IO may record their suspicions in the immigrant's file when the green card application is adjudicated. It's not clear to me if every immigration officers notes would be available for a consular officer or CBP officer to read. In other words, I'm not sure if they could pull up those notes on their computer screens. Presuming they were able to, I suppose seeing the IO's suspicions might affect how they use their discretion. I've honestly never heard of a case where this has happened, though. I've also not seen anything in the Foreign Affairs Manual that directs consular officers to read notes from a USCIS immigration officer.

Frankly, I don't think they'd need the IO's notes for a basis to use their discretion to deny a visa or entry. The fact that the alien adjusted status on a visitor's visa or entry pass previously is enough evidence to indicate that they might intend to do it again.

[snapshaps 0]

Frankly, I don't think they'd need the IO's notes for a basis to use their discretion to deny a visa or entry. The fact that the alien adjusted status on a visitor's visa or entry pass previously is enough evidence to indicate that they might intend to do it again.

Maybe, but hopefully they'd not just deny everyone automatically because of a J1->LPR in their history somewhere.

Assume you AOS from J1 to live with your US spouse and then decide to bring your family back to your home country to settle there. This would imply that you could never join them on visits back to the US (to visit grandparents et al.) without filing for a hardship waiver, right? That seems a bit harsh if there were no clear intent on the original J1. It's clear that if you visit on the VWP or a tourist/visitor visa and AOS right away, this would raise strong suspicions. But I would hope that you, in cases where there genuinely were no intent and the visitor had complied with the J1 status for a long time, could still convince the officer to let you in especially if you left wife/kids/job/house/dog/stamp collection/cat in the home country.

However, I could be naive, maybe this is in fact the policy of the CBP. I would think that a lot of J1 postdocs/researchers could find themselves in this position and I'd surprise me if they were suddenly banned from visiting the US without a hardship waiver.

[snapshaps 0]

Maybe I can make my point more clear. It is my understanding that if it's been decided that you entered the US on fraudulent terms because of misrepresentation or something else, you are automatically banned from entering without a waiver of some sorts. I guess my question is if AOS'ing from a J1 automatically makes you guilty of something like that (even if it is forgiving for the green card itself). This means that there is nothing you can do to be let in without this waiver, regardless of what evidence you may have at the time of entry. This is very different from just dealing with a suspicious CBP officer that however is willing to listen to you. I definitely understand that the proof of burden is harder to lift if you've AOS'ed from a J1 in the past, but at least you still get to try.

[Harpa Timsah 13,258]

My opinion:

Being a former greencard holder gives you some positive status... There is even a special visa for returning residents that abandoned their GC accidentally. A concurrent AOS application will not haunt you forever. It is a legal option if the foreign spouse resides in the US and the price is not automatic vwp/tourist visa denial after the GC has been abandoned properly.

I wouldn't worry about it.

[JimVaPhuong 4,863]

Maybe I can make my point more clear. It is my understanding that if it's been decided that you entered the US on fraudulent terms because of misrepresentation or something else, you are automatically banned from entering without a waiver of some sorts. I guess my question is if AOS'ing from a J1 automatically makes you guilty of something like that (even if it is forgiving for the green card itself). This means that there is nothing you can do to be let in without this waiver, regardless of what evidence you may have at the time of entry. This is very different from just dealing with a suspicious CBP officer that however is willing to listen to you. I definitely understand that the proof of burden is harder to lift if you've AOS'ed from a J1 in the past, but at least you still get to try.

No, it wouldn't make you guilty of anything, even if the IO was absolutely convinced there was preconceived intent and noted this in the applicant's file. There would be no ban of any kind, and no waiver would be required. My comments were about what you asked specifically - getting another non-immigrant visa or entering using the VWP. I think that having a prior history of adjusting status while visiting the US could affect their decision to issue another visitor's visa or allow entry using the VWP. If you've done it once, they could certainly presume you'll do it again. This doesn't mean you can't overcome this presumption with piles of evidence you intend to return before your I-94 expires, or that you can't apply again and be approved. It just means that it might raise the bar a few notches.

[snapshaps 0]

This fits more or less with what I was hoping (and expecting). Thank you guys.

Edited December 2, 2010 by snapshaps