AOS and preconceived intent

[Metanastis 0]

Hello everyone,

This is my first post although I have been reading various posts for fellow members for some time now. My husband and I got through a very stressful process. Now that all is over (husband got his green card) I feel obligated to post our story so that others can benefit from our experience and mistakes.

The story in brief ... I'm a US citizen (born in the US) but lived abroad (in Greece) most of my life. I met my husband three years ago, got engaged last year and got married November 1st, 2012. In October 2012 (just before our wedding) I got a job offer to move to NYC. We both arrived in the US on November 17th 2012 (my husband entered on a Visa Waiver) and filed for adjustment of status on November 29th.

Some comments on the above facts.. Everything happened so fast that we didn't have the time to do this in a "proper" way. We had no idea of immigration procedures and from a brief search we understood that since there was not enough time to file for Direct Consular Processing I could come to the US, and then later file from here while my husband waits in Greece. We knew there was going to be some separation but decided to do it this way. When we arrived in the US, we considered it a good idea to meet with an immigration lawyer, mostly to help us with paperwork (after all we thought our case was pretty straightforward). It was then when our lawyer suggested that my husband didn't have to leave the US and that we could file for an adjustment of status. We were shocked! My husband even had a job back in Greece and a return ticket! He had only come to the US to accompany me so that I settle and then leave so that we would start the process with immigration.

Our lawyer never mentioned to us that we were taking the risk of being accused for preconceived intent or even visa fraud. My husband entered the US using the Visa Waiver which means that his intention was not to immigrate. While his intention was to go back to Greece at that time, the fact that he changed his mind so soon was very suspicious. At some point I asked our lawyer what were we supposed to say to the interviewing immigration officer if we are asked about intention etc. She told us "don't worry they are not going to ask you; they don't care as long as they believe that your marriage is genuine". We trusted her - what a big mistake!!!

We got a very strict immigration officer for our interview who asked and asked and asked about this particular issue of intent and seemed very unsatisfied with the answers we gave. We were totally unprepared for these questions - at that point we didn't even know what the issue was and why he was being so aggressive. At the end he said he would make a decision within 60-90 days and showed us the way out. When we realized what was wrong (spoke to two other immigration lawyers) we understood how many mistakes we had made. It doesn't matter that my husband's intention wasn't to stay in the US when he entered - what matters is whether the immigration officer will believe that this was indeed the case. There is case law (i.e. matter of Cavazos) that says that in those situations even if there is preconceived intent in the absence of other adverse factors the immigration officer has the discretion to approve the AOS (for immediate relatives only). However, the immigration officer also has the discretion to deny our case. It's not even certain that he is aware of this case law. The other issue with the Visa Waiver is that all you get is one immigration officer - you don't get a day in court with a judge where you can prove your case (you have waived this right). If the officer decided to deny our case our only course of action would be to file a motion to reconsider (in this case the same officer can reconsider his decision based on new facts and evidence). During this motion to reconsider (if we understood this correctly) my husband would be out of status (accumulating days that could lead to a 3-10 year ban from the US) and his EAD would be revoked - and the process could take months and months, it's not a priority at all. We could not believe that we could find ourselves in so much trouble.

Thankfully our case ended well with the immigration officer approving our case. I don't believe we deserved to go through all this stress and agony. I wanted to share our story for other couples that may be going through something similar. No case is simple and you have to prove your case to immigration with facts. Be prepared. Oh and something else! In any case, file after 60 days after you enter the US.. this seems to be a key for an officer in order to determine that there is no preconceived intent (stupid, but it is how it is). And of course, if your case is similar to ours consider consular filing... much safer!

Metanastis

[lost_at_sea 995]

Thanks for sharing your story. I'm glad it worked out.

Your story is exactly the reason you'll see most people on here not recommend the path you took, and follow the less risky, but longer and harder, road of filing from abroad. It can all so easily go wrong.

[KayDeeCee 4,893]

~ Moved from AOS from Family Based to AOS from Work, Student & Tourist Visas Progress Reports ~

[keyser 3]

thank you for the story & congrats

[ddkorestin 10]

i think you got people confused. this is not your own personal story. Am i right.

[Metanastis 0]

ddkorestin, thank you for the comment but I'm not sure I understand how you reached this conclusion.. this is 100% our story... I would have no reason to post it otherwise.

[Billett 14]

ddkorestin, thank you for the comment but I'm not sure I understand how you reached this conclusion.. this is 100% our story... I would have no reason to post it otherwise.

Thanks for your story, mine is similar but not so dramatic. I came on B2 visa and got married after 30 days, but did not intend to stay because I had my job but my hubby and I went to an attorney and ask about the procedures, I explain him that I was living the US in 2 months because I had to go back to work and he was surprise, he told me I should stay and adjust after 60 days, I told him no, I needed to work and any way I would see my hubby every 5 days in Fortlauderdale because I worked on cruise ship, he told me that if I come back I could come and see him to adjust my status. So I left and work but see my hubby every 5 days as I was legally working on C1/ D visa, my mistake was not researching the topic and trust the lawyer. I left the ship went on a month to visit my hubby because after each contract you fulfill you get 3 months vacation, Me and my hubby told his parents we got married( we elope) and they was surprise but happy as they like me and treat me as a daughter but my hubby is bipolar and sometimes get really depress, my mother in law ask me to stay and not to go back to work, I adjust status after 120 days but even though it was not plan in any way I do regret not doing trough consular way, because I could have come to visit even in the waiting time, if I did do the reaserch in this site.