jemavalon

100% agree with this statement. The reality is though that a lot of people coming with longer-type visas, like F-1, that eventually marry USC, usually spend a long time in the country before marrying USC or applying for AOS (I'm talking years!), so intent on entry into US is not an issue in most such cases.

I agree, that if someone gets F-1 visa, enters the country and marries USC next week, and applies for AOS the week after that, it will raise red flags (or at least it should)! I'm sure that if someone posts a story like that here, immediate recommendation would be: go and see an experience attorney. If someone posts a story like -- I came to this country to study 2 years ago, a year ago I met my fiance, do I really have go back home and break my studies which will be a huge hardship in order to be with my love eventually, then it is easier to suggest that person to research the AOS option (though my recommendation would be to go and see International counselor at one's school, but that's beyond the question).

There is another big difference, however, between VWP and having a visa: people coming on other visas do not waive their right to appeal (at least I don't remember signing anything about that). So it's a bit less risky to proceed without a lawyer -- if AOS is denied, you can appeal. You can't appeal on VW...

Julia

Folinskyinla

Hi:

Allow my pedantic side to make some comments. H-1b is NOT a "dual intent visa." However, I can see where the confusion comes from.

"Dual Intent" is a legal argument that one can have alternative intentions, so to speak, at the same time. The classic example was the H-1 to Labor Certificate where employer would bring in a specific alien "temporarily" and then file for the permanent labor certification. The argument for dual intent was that the job was "temporary" UNLESS it could be made permanent, and if it could not be made permanent, it would remain temporary.

Needless to say, this argument was quite controversial. The bar-government debate on this escalated when some US Attorneys began to obtain criminal indictments against immigration attorneys for what was considered accepted practice. [And some of you guys think I'm paranoid or rude -- I talk from many years of experience and obsevation, my friends.] This finally culminated in the 1986 indictment of Dale Schwartz of Atlanta, the then incoming president of AILA [and a prince of man]. Dale eventually got the indictment quashed. In part, he obtained statements from INS mucky-mucks that, although they disagreed with the concept of dual intent, it was a "good faith" argument.

Since "dual intent" came up in the H-1/LC arena, Congress made a quick & dirty fix in the 1990 legislation by amending the 214(b) presumption. Within the structural framework of the INA, it makes no sense, but accomplished its purpose. [BTW, with the 1996 IIRIRA legislation, Congress completed its trashing of the 1952 structure and much of the INA is now pretty incomprehesible.]

"Dual intent" IS relevant to the discussion here, but it remains controversial and do remember: there have been indictments. Even if one doesn't get convicted, it does ruin the indictee's life.

Folinskyinla

Hi:

Being pedantic again: Matter of Hosseinpour, 14 I&N Dec. 191 (BIA 1975) -- can be found online at:

http://www.usdoj.gov/eoir/vll/intdec/lib_vol15idx.html

under decision #2349.

Filing for adjustment of status is NOT a violation of F-1 status. Please note that Mr. Hosseinpour still lost because F-1 was for a time certain back then and not for "D/S."

BTW, I once mentioned this a senior Consular Officer who had become my friend. Doug was a reasonable guy and knew his stuff. However, he was quite surprised when I brought this case to his intention. Most Consular Officers do NOT know of this case. I mention this because the law may be clear, but its application can be otherwise.

One of the reasons I sometimes say: "best you seek legal counsel."

Stina

My specific query was not about "dual intent" visas like H1-B, but more specifically visas which are issued with the assumption that the alien will return home after finishing their contract, college course, whatever.

It's a slightly different issue.

meauxna

Well, 'fish on', as they say. No wonder people get defensive here; as a result I feel set up. I'm not playing a game here. I've wanted resolution on this issue for a long time, but I have come to the conclusion that it is not going to happen.

IF someone wants to use the H-1B as a shortcut to immigrating to the US to marry their intended, I wouldn't call that a very short shortcut! There is a mile's worth of difference between applying for a visa and 'just' hopping on a plane to move countries.

If people on this group want to discuss/resolve the issue, keep it on topic. There's one camp that answers VWP questions one way, and another who want to answer a different way.
I don't typically answer questions about F, H or J adjustments because I didn't use or research those methods. I did research VWP entry, K and Immigrant visas. This discussion is about VWP adjustments and my suggestion is to solve this one before moving on to other visa types and going all OT on case law and hair splitting.

The law and reality are two very different things. I'm still not going to be the one that tells some couple only part of the story and tells them to go for it (psst: people lie!). Since I can't be bothered to write out the whole story for every post, I have my answer ready and I can live with it.
If someone wants to play 20 questions and/or write out all the pitfalls, red flags, whatevers: they are welcome to it.

Personally, I don't think the 'you don't need a lawyer camp' really made their case in this thread.

Stina

I don't think anyone was questioning the validity of getting an attorney - I certainly wasn't. There's always merit in that advice.

meauxna

The only people I've seen with a moral objection are Ian and some folk from the past. Ian's statements in the past would lead me to believe that he doesn't agree with adjusting from any of these non-immigrant options, but I'll let him answer himself. Maybe there is a distinction he draws in there.

Maybe you are confusing the VWP 'problem' here. There are 2 different answers, and as MrF has said, it depends on where his client is sitting when the question is posed-- in the US or outside the US. How much baggage they arrived with etc.
Despite the protests, I don't think people that adjust from (whatever) get such a hard time here. I think VWP AOSers appear more sensitive to perceived critisism.
I see that people who think it's somehow their right to enter and adjust because (fill in their complelling reason) take some tough answers here, and some change their minds and go home for a visa.

If you think that we should open loving arms to the star crossed lovers that can't bear to be apart another moment and help them plan a deceptive entry to the US.. well, I'm sure that's not what you were thinking

jemavalon

Thanks for the link and the case! Interesting, you just showed me that I probably wasted fees for 2 EADs, while I was adjusting from F-1 and lot's of emotions. When I was an F-1, admited as a D/S and applied for AOS doing everything myself, the University lawyer found out about that (she worked for the University and she was a member of the BAR) and she made a big deal of the fact that I did not apply for EAD initially, and how I did "illegal work on campus" because I no longer had F-1 status, and how the University is in danger, and how I should be deported, etc. etc. After that I got a real lawyer (btw: his credentials were very impressive), but his point was more like "illegal work will be forgiven because you a wife of a USC" and he even confirmed to me that I lost my F-1 status the minute my I-485 was received... I adjusted before I graduated, and maintained all other aspects of F-1 status, so now it seems that I never worked illegally in the US Hmm... I wonder how I can point this case to the University lawyer, so she want spoil lifes to more students... I literary felt that I was a criminal, and was crying my eyes out (what can I say, it was a long time ago and I was young back then .

Thank you,

Julia.

Stina

That was really what I was wondering. Whether you can draw that moral line about purposes, intentions, and uses of visas.

Oh, I understand that. I also appreciate that there are people who abuse the VWP, who unfortunately give everyone else a bad name. I know it's a complex question, with tree-branch questions every inch along the way.

I think VWP adjusters are more sensitive because they get more aggro. It's probably six of one and half a dozen of the other.

I'm glad you don't think I've lost the plot completely!

nettlebed

Sorry, Meauxna, I wasn't playing games for the sake of playing games: I really wanted to know what people's opinions were, and Folinskyinla has added some valuable information that I (and maybe others as well) didn't know, viz. that H-1B is not an "dual-intent visa", but that under the Immigration Act of 1990 people in the H-1B category (and some other categories too) enjoy dual intent, which is a subtle but important distinction. True, in many ways it is much harder then even the preferred fiancé visa, and the reason I chose it was because it eased my employment situation, since my company transferred me from the Slough location to the one in WA state. All in all, it was relatively easy, but it still wasn't as trivial as just hopping on a plane, not by a long chalk!

This seems reasonable to me, but as I mentioned above, you can still find interesting nuggets of information when you talk around the periphery of the discussion, or even look at it from a different angle.
I think a lot of the problems are caused by people not wanting to hear that these things are always reasonably complicated, can become EXTREMELY complicated, and at some point, especially when illegality is suggested (in fact pretty much always when illegality is suggested) the firm answers are going to dry up rather rapidly. FWIW, I find your posts very informative, helpful, and accurate, so kudos to you!

You may find SOME people who disagree with this, but not me...

nettlebed

And if, as happened in the past, people have stated an intention to break the law in the process of adjusting from VWP entry, they may very well be more defensive in any case (and may very well be expecting a harder time)...

Folinskyinla

Hi:

I understood that perfectly and that is one of the areas where "dual intent" applies. Although the F-1 is long term, it does have a "home abroad" requirement. However, it is attenuated by the long-term nature of the F-1 admission. In the case of the B or VWB/T admissions, the "home abroad" requirement is that much stronger.

Part of the problem of the VWP to AOS scenario is that many lay posters want definite answers and there are many gray areas and potential land mines as to make really definite answers impossible. And that is what posters on this list seem to desire.

Stina

Thank you for your answer, MrF.

Folinskyinla

Hi:

Please forgive me, but I am LOL [even though I shouldn't]. I've been told by other lawyers that I am "creative" and "think outside the box." Neither is true, but I will admit that I often see the box differently.

I once had a new [and fairly green] Immigration Judge make a procedural ruling at the end of the intial hearing on how the case would go. The government attorney then makes a motion to amend and reads a regulation to her which just so happened to contradict several SUPREME COURT decisions. The IJ looked at me and asked my opinion and I replied with a question "Is Marbury v Madison [1803] still good law." The IJ says "Yes it is. Motion denied." The very young government attorney KNOWS he has just been grossly insulted by both the bench and yours truly and doesn't know why.

Upshot -- I had a hearing in an adjacent courtroom the following week before a very seasoned and experienced IJ. I cited a BIA case and apologized for the age of the case -- from 1948 -- but it was still good law. The IJ said "No problem, it is newer than Marbury v Madison." I later found out that the new IJ often consults with her older colleague.

As I mentioned, I have to remind people of Hosseinpour. For some reason, the common perception is contrary to the only published case on the subject. Go figure. But do mention it to FSO with the note "I understand that many attorneys are not aware of this." Same to your private counsel. I think they will appreciate it. After all, WE are all always learning.

meauxna

Well, as they should be, right? Doesn't that imply that they know they're up to something sketchy?

I was as ignorant as anyone. I met this great guy, we had a rushed romance and he proposed. I've just looked it up: 29 days of bliss + research followed the proposal to my first post asking for help. I'd gathered a lot of info, but I had it all jumbled up and my questions made little sense. I specifically asked about using the VWP and how many times he could use it per year. I didn't think we wanted a green card, but I was quickly brought up to speed by a couple of great posters here (belated thanks to Andy Platt!) and alt.visa.us

I was told: The Fiance visa does not apply to your situation, the VWP is not an option for you and the K-3 does not apply. These were the only things I had found out about. Talk about discouraged!
All these vague scenarios... I was the same as anyone who comes to this group; I'd finally found my One and I couldn't figure out how we could stay together. When we finally figured out that we did need residency, surely flying over with him on the VWP seemed like the obvious option? Of course it did. No one told me it wasn't allowed, or that I might have trouble. Until I learned about the limitations of filing AOS! They were conditions we simply could not live with; AP etc. I stuck with it, I learned what I needed to learn and I got a bit lucky (tho I think we make our own luck in the end). In fact, in a perverse way, it was probably the infamous Tourist Adjustment page that was frequently linked here that led me to the DCF info and the explanation I needed to complete my case successfully (thank you again AF, Jonathan & MikeFAQ).

My point? It's in here somewhere, or not... I don't object to VWP AOS relationships-- I know first hand that these things can just happen-- but knowing what I know *now* it's easier to just tell people which part of it is illegal and let them do whatever. MOST people don't want to start out on the wrong foot with their new relationship/home.

In my dotage I guess I've become more conservative. What I really felt at the time we were deciding is that I finally understood holding something *so* precious to me that I wasn't willing to risk his safety and comfort to spare myself some paperwork or learning. I was able to adjust status overseas from a visitor visa-free entry, so obviously I see the merits in taking that path. I don't think that getting a fiance/spouse visa is some hair shirt that everyone should be made to wear.
I stayed over there and did my waiting on the beach

So, what I *do* resent is people who post here and won't take a hint. If you're not getting direct answers, read between the lines! Read anything, for the gods' sake. 'DIY' means Do It *Yourself*, not 'hey, come to our newsgroup for free legal services!'.

hmm. I guess there was no point in there afterall, I just felt like going over old times.