GREEN CARD DELAY OF ADJUSTMENT AFTER B-2 ENTRY

30-60 DAY AOS (ADJUSTMENT OF STATUS) RULE OF “PRECONCEIVED INTENT”

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Sometimes Americans meet a foreigner who is on vacation in the USA on a 6 month B2 tourist visa.  They start dating and fall in love and want to get married. They want to go through the adjustment of status green card processing so they can live together permanently.  They need to remember that when a USCIS Officer makes a decision about granting someone like a B2 visa holder a green card, they have some discretion, because the B2 visa is considered a nonimmigrant (temporary) visa.

The thing about adjustment of status (AOS) is that the decision to grant U.S. permanent residence (green card) made by the USCIS Officer is “discretionary,”  not mandatory. Therefore, the USCIS Officers do not have to grant the change from B-2 Tourist visa to green card holder.  It is possible for a person who is technically eligible for immigrant status (green card) to be denied in the Officer’s “exercise of discretion.”

The most common instances of such discretionary denials involve cases where the applicant abused the nonimmigrant process within the first 30 days of entry.

How can a B2 visa holder abuse the nonimmigrant process? If a person enters the

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United States in certain nonimmigrant (temporary) visa categories with the obvious intention of applying for immigrant (permanent green card) status, their I-485 adjustment of status (AOS) application can be denied by the USCIS in the exercise of discretion.

People in certain nonimmigrant visa categories are not supposed to intend to acquire permanent status.  They are B-1/B-2 Visitors, F-1 Students, J-1 Exchange Visitors, Q Cultural Exchange Visitors, TN Visitors or Visa Waiver Visitors.

Applicants for AOS must not only prove to the USCIS that they have been “in status” at all times that they have been in the United States (since 1987), but also that they have not acted in bad faith after their latest entry.  The USCIS has adopted the “30/60 Rule” used by the Dept. of State’s Foreign Affairs Manual (9 FAM 40.63 n4) when examining events that occur shortly after entry.

For example, if a person applies for admission into a school or for a change in nonimmigrant or immigrant status within 30 days of entry as a B-2 visa tourist, they are presumed to have acted in bad faith. According to INA 214(b), every foreign national who files paperwork to change to a different visa category or to stay in the U.S. permanently within the first 30 days after arriving in the U.S. is presumed to be trying to avoid the other longer procedures that everyone else has to go through.

That is, they are assumed to have had the preconceived intent to make a request for a  change before they even arrived in the U.S. — and therefore they obtained or used one visa in order to evade the normal screening process abroad for the nonimmigrant or immigrant visa they really wanted.

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If the application for AOS is received by the USCIS between 31 and 60 days after entry into the USA, no presumption of bad faith is made, but there is a strong suspicion that the person may have acted in bad faith. That case will be scrutinized very carefully. A foreign national is allowed to have a general desire to remain in the U.S. (Matter of Hosseinpour, 15 I&N Dec.191 (BIA 1975)) but a fixed intent to remain in the U.S. is not allowed (Lauvik v. INS, 910 F.2d 658, at 660 (9^th Cir. 1990)). Filing paperwork to get a green card through AOS processing is perceived as a fixed intent to remain in the U.S. permanently.

It is up to AOS applicants to show that they had no preconceived intent to apply for permanent residence, pursuant to INA 214(b), because preconceived intent is a potential basis for discretionary denial of AOS (Von Pervieux v. INS, 572 F.2d 114,118 (3d Cir. 1978)).

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If the AOS application was filed more than 60 days after entry, the automatic presumption is that the applicant acted in good faith.  With regard to immediate relatives, preconceived intent is not supposed to be presumed and is not supposed to be the basis for an AOS denial if it is the only adverse factor (Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980), Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981)) Matter of Battista, 19 I&N Dec. 484 (BIA 1987)). To be safe, it is best to wait and file the AOS application at least 61 days (or more) after the date of entry.

Keep in mind that the USCIS still reserves the right to investigate any AOS case if there is evidence of wrongdoing. If an AOS applicant has anything in his or her past visa history that suggests that he or she may have abused the visa process, or otherwise tried to take shortcuts, the USCIS has made it clear that they can deny such AOS applications in their exercise of discretion.

What do previous clients have to say? Take a look.

HELPFUL TIP:  If you entered the USA on a B1/B2 Tourist visa or F-1 Student visa (or any visa listed above), and after you entered the USA you decided to get married to a U.S. citizen, your U.S. citizen spouse should not file your green card paperwork with the USCIS in Chicago until the 61st day (or more) after your entry. In other words, to avoid a discretionary denial, do not file an I-485 Adjustment of Status (AOS) application during the first 60 days after arriving in the USA.
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Email danielle@immigrationworkvisa.com or call (619) 235-8811 or (877) 884-6644 for a free phone consultation.

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