ian-mstm

I wasn't referring to intent at all. I note simply that with few exceptions (such as C-1/D visas), dual intent is valid for most other visa types. If you want to discuss the legality of it, I refer you to J Craig Fong who noted the specific nature of dual intent in this forum many years ago - and which, I believe, is still valid. He noted, that with few exceptions, almost all visas allow dual intent.

Ian

jsted

Kinda hard to prove intent to stay and adjust status. You see so many marrying in the US on a visitor visa and adjusting status. Also US citizens bringing their parents in on a visitor visa then filing for adjustment while they are here.

Pulaski

For some who attempt, they fail, and it blows up in a very ugly way, potentially being banned from the US for a period of years, and potentially permanently. I suspect that many who attempt to adjust from a VWP visit don't know the risk they are running.

md95065

While that is often true, it would seem that, in this case, the OP has been doing almost everything that she could in order to demonstrate that this was, in fact, her intent.

In practice, however, I suspect that the option of entering as a visitor and then suddenly deciding to stay and adjust status is simply not currently available since I can't see her getting either an ESTA (if she is even eligible for one) or a B visa at this stage. Even if she could get into the US as a visitor, what is she going to do about her UK citizen daughter who, currently, also has neither an ESTA or a visa?

I suppose that the best explanation she could come up with would be along the lines of "Well, yes, I intended to apply for adjustment of status at some point, I just didn't enter the US with the intention of doing it on this specific trip and then I changed my mind" ...

This whole thing is fraught with the potential for disaster unless the OP and her husband just go ahead with a normal immigrant visa application.

As I mentioned earlier, I would also strongly suggest that the OP have at least a one time consultation with an immigration attorney in case there are other details about her case which have not been mentioned and which might prove to be problematic.

crg

The difficulty of the government proving that someone has immigrant intent is not relevant since there is always a presumption of immigrant intent. The traveler has the full burden of proof. The government doesn't have to prove anything.

INA 214(b): Every alien 10/ (other than a nonimmigrant described in subparagraph (L) or (V) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15) .

crg

We must have a disconnect somewhere. I was referring to the person's intent each time they seek entry with their nonimmigrant visa. If someone with an H1 or L (dual-intent) comes up to the border and says, "Hi, once you admit me, I'm dropping an I-485 in the mailbox for a green card" that would be fine provided they are otherwise admissible as an H1 or L. Almost all other nonimmigrant classifications would be inadmissible under those circumstances. I'm puzzled as to what else there is. Almost all categories allow AOS if the AOS was unplanned/unforeseen at the time of entry. Is that what you mean?

As a side note, there are actually two different flavors of C-1. There is a huge difference in the relief and options available depending on the circumstances. A C-1 in transit is generally eligible to AOS. So they have more access to the AOS process than a C-1 employed as a crew member.

jsted

What about those USC that bring their parents in on a B1/2 then a month later file for AOS to a GC? They may wait a few months but they get it!

Noorah101

Yes, as stated, most cases get approved. If a case does not get approved, someone who entered on a B (or any other) visa can appeal USCIS' decision. Someone adjusting from VWP cannot appeal.

Doesn't matter if it's a spouse, parent or child...rules are the same for everyone who tries to AOS from visitor.

Rene

Pulaski

Not everyone does, and that's my point: short-circuiting the system has risks, and many of those attempting that route don't appreciate the risk that they are taking.

crg

There are risks. It's not uncommon for someone to travel after filing, but before they receive advance parole due to a family emergency. Then the 485, 765, and 131 are all abandoned, the fees go down the toilet and the person is stuck outside of the US until they can get an immigrant visa. They could also have additional issues to overcome due to the attempt.

fbf2006

Some people don't think there are any issues going this route. Reading these posts, I just realized that my mum pretty much did this. My older sister was born in the US when my parents were in grad school. They moved back home once their studies were completed. My sister then came back for college and my mum came for her graduation 4 years later on a visitor's visa. My sister had just turned 21 a couple of months before that and when my mum came over, they went to the then INS office (for some reason) and were asked why couldn't they just file for her AOS while she was in the US, rather than her going back home to do consular processing.


I know we can't rely on USCIS officials as they tend not to know what they're doing sometimes. My point is just that some people really don't think/know they're doing anything wrong.

Noorah101

But it sounds like in your mom's case, she had no prior intention of remaining in the USA. She just came over for her daughter's graduation, and then once here, decided to stay. That is allowed. We are talking about people who PLAN to come as a visitor and remain in the USA. That's not legal, but people do get away with it.


That's why we are here, to educate them.

Rene

Pulaski

I don't think anyone would disagree with that statement.

jsted

'We are talking about people who PLAN to come as a visitor and remain in the USA. That's not legal, but people do get away with it.'

Thats the issue people think why bother waiting for an immigrant visa can enter on b1 file for AOS and wait in the US rather than waiting at home. Its hard to believe that anyone that does this did not plan to remain in the US.

However if they want it to be truly illegal then simple change of legislation preventing AOS from B1/2 to GC would stop this completely. Until then given the route is there cant stop people using it!

Rainbowsandicecream

All this talk about consequences and blowing up in an ugly way....
Is everyone here aware that according to case law, intent is determined at POE and intent alone cannot be a reason for denial? See Matter of Cavazos and Matter of Battista.
So while yes, it is illegal to have intent to remain prior to entering the country and should not be done. If one gains successful entry into the country, intent no longer matters and cannot be used against you while AOS.