Visitor Visa and AOS

[vidyaravich]

Hello,

I apologize if this question has been answered before. I looked for the info and could not find a straightforward answer anywhere.

I am interested in filing for a GC for my parents. They will be in the US on visitor visas. Can I apply for their AOS when they are here on a visitor visa? If so, are there any constraints?

Also, if they need to leave to return to India while their GC is being processed, can they legally leave the US and return. They have very elderly parents who may need them.

Thank you in advance for any help.

[nscagony]

A visitor visa is intended for visitors, not immigrants. Especially if you file for AOS shortly after they enter, they will likely be accused of immigration fraud and might end up getting banned for life. The proper route for them is to apply for consular processing.

[Jackolantern]

Have them wait in India and interview at the embassy there, unless there is a compelling reason you need them to be in the US ASAP. Filing AOS for them when they're in the US on a tourist visa is frowned upon by USCIS and invites potential problems, especially if you file within 90 days of their arrival in the US. So if they're going to use AOS, they'd have to enter the US, wait 90 days to apply, then get fingerprinting done and wait for Advance Parole approval which might take another 2-3 months, then return to India with the Advance Parole in hand.

[tdas63]

Originally Posted by Jackolantern

Have them wait in India and interview at the embassy there, unless there is a compelling reason you need them to be in the US ASAP. Filing AOS for them when they're in the US on a tourist visa is frowned upon by USCIS and invites potential problems, especially if you file within 90 days of their arrival in the US. So if they're going to use AOS, they'd have to enter the US, wait 90 days to apply, then get fingerprinting done and wait for Advance Parole approval which might take another 2-3 months, then return to India with the Advance Parole in hand.

Do u have any data or actual example to back up these assertions ? As far as I know there are no such such rules. I understand that you are advising in good faith but in absence of any example or data or law, it spreads unnecessary false information and fear mongering. Thank you.

[Triple Citizen]

What kind of data are you looking for? A specific number informing you how many people have been accused of misrepresentation and sent back in a calender year? You expect forum members to have such information?
Both nscagony and jackolantern are dead right with their advice for the OP.

Originally Posted by tdas63

Do u have any data or actual example to back up these assertions ? As far as I know there are no such such rules. I understand that you are advising in good faith but in absence of any example or data or law, it spreads unnecessary false information and fear mongering. Thank you.

[Jackolantern]

Originally Posted by tdas63

Do u have any data or actual example to back up these assertions ? As far as I know there are no such such rules. I understand that you are advising in good faith but in absence of any example or data or law, it spreads unnecessary false information and fear mongering. Thank you.

There actually is a 30-60-90 day rule for determination of intent, a rule that the INS derived from court precedents (see Seihoon v. Levy, 1976 and Matter of Hsu, 1973 -- note that although some legal experts say the INS should not have applied those precedents elsewhere, the fact is they still do that anyway).

Basically, what it means is this: if you enter the US in one particular nonimmigrant status and then take steps to change to another status within 90 days, that indicates that you originally intended to be in the second status when you first entered the US. Depending on what types of status are involved, that may be considered fraud for misrepresenting your intent at the port of entry. The 30, 60, and 90 day limits are guidelines for the strength of the presumption of fraud and how rebuttable the presumption is. That is why they should wait at least 90 days after entering with a tourist visa.

[tdas63]

Originally Posted by Triple Citizen

What kind of data are you looking for? A specific number informing you how many people have been accused of misrepresentation and sent back in a calender year? You expect forum members to have such information?
Both nscagony and jackolantern are dead right with their advice for the OP.

If you dont have any such information, stop throwing out information that you
think is correct.

[tdas63]

Originally Posted by Jackolantern

There actually is a 30-60-90 day rule for determination of intent, a rule that the INS derived from court precedents (see Seihoon v. Levy, 1976 and Matter of Hsu, 1973 -- note that although some legal experts say the INS should not have applied those precedents elsewhere, the fact is they still do that anyway).

Basically, what it means is this: if you enter the US in one particular nonimmigrant status and then take steps to change to another status within 90 days, that indicates that you originally intended to be in the second status when you first entered the US. Depending on what types of status are involved, that may be considered fraud for misrepresenting your intent at the port of entry. The 30, 60, and 90 day limits are guidelines for the strength of the presumption of fraud and how rebuttable the presumption is. That is why they should wait at least 90 days after entering with a tourist visa.

Thank you for the information

[TheRealCanadian]

Originally Posted by tdas63

If you dont have any such information, stop throwing out information that you think is correct.

Jackolantern has pointed out federal court precedents for you.

Keep in mind that even if your parents are approved, it makes B visas that much less likely for people that follow. Go read through other forums to see how hard it is for citizens of certain countries to get B visas if they have relatives in the US with Green Cards or who are citizens.

[vidyaravich]

Thank you all for your thoughts. It is clear that filing for AOS in the US after entering on a very risky proposition. I was not aware of this.

I know a lot of people who have filed for their parents who were visiting on visitor visas so I thought this was a relatively common way for people to apply.

If one applies through CP from India, how long is the average wait before they can travel to the US. I know it varies from case to case. I was wondering about the average time. My parents would have to go to Chennai.

Thank you all again.

[Triple Citizen]

Read my numerous posts over the past 2 years mentioning the 30-60-90 precedent. You are welcome.

Originally Posted by tdas63

If you dont have any such information, stop throwing out information that you
think is correct.

[Triple Citizen]

There is a correct way of doing things and a not so correct way of doing things. CP route is the safest route with no room for USCIS to accuse your parents of fraud and/or misrepresentation. It should take around 12 months. Good luck!!!

Originally Posted by vidyaravich

I know a lot of people who have filed for their parents who were visiting on visitor visas so I thought this was a relatively common way for people to apply.

[arun_parv]

I guess what I am confused about is why stop at 90 days? The typical entry duration granted for someone entering on a tourist visa is 180 days. So if you applies for the AOS after a 100 days or 150 days how does it change the intent in any way from the point of view of USCIS?
Just sounds like bureaucratic crap to me.
The bottom-line is there is an intent on part of certain citizens to sponsor non-immigrants to this country whether AOS or CP. As long as the non-immigrants don't enter the country illegally what difference does it make? For example, I am likely to become a citizen this year, my parents plan on visiting me later this year since they haven't for over a couple of years now. Apart from this, my intention has been to sponsor them for a GC. If I do this during their visit, we save on plane tickets for them to come back next year if they go through CP, not to mention save them the strain of going through a couple of more 24-hour trips at the age they are at. So I take advantage of the fact that they are here and opt for AOS.

If only the govt. spent all this effort on folks breaking the law by entering/staying here illegally. Instead they choose to make things cumbersome for those who are likely going to abide by the law anyway. Almost sounds like there needs to be a "Process Reduction Act" in addtion to the oft seen "paperwork reduction act". I have come to the conclusion that governments function the same all over the world, inefficiently and to exert maximum control over its citizenry. Governments in the western world simply put a "suite & tie" over what is basically the same mode of operation as the rest of the world. Maybe I shouldn't be confused after all. We are after all dealing with a Government.

[tdas63]

Originally Posted by arun_parv

I guess what I am confused about is why stop at 90 days? The typical entry duration granted for someone entering on a tourist visa is 180 days. So if you applies for the AOS after a 100 days or 150 days how does it change the intent in any way from the point of view of USCIS?
Just sounds like bureaucratic crap to me.
The bottom-line is there is an intent on part of certain citizens to sponsor non-immigrants to this country whether AOS or CP. As long as the non-immigrants don't enter the country illegally what difference does it make? For example, I am likely to become a citizen this year, my parents plan on visiting me later this year since they haven't for over a couple of years now. Apart from this, my intention has been to sponsor them for a GC. If I do this during their visit, we save on plane tickets for them to come back next year if they go through CP, not to mention save them the strain of going through a couple of more 24-hour trips at the age they are at. So I take advantage of the fact that they are here and opt for AOS.

If only the govt. spent all this effort on folks breaking the law by entering/staying here illegally. Instead they choose to make things cumbersome for those who are likely going to abide by the law anyway. Almost sounds like there needs to be a "Process Reduction Act" in addtion to the oft seen "paperwork reduction act". I have come to the conclusion that governments function the same all over the world, inefficiently and to exert maximum control over its citizenry. Governments in the western world simply put a "suite & tie" over what is basically the same mode of operation as the rest of the world. Maybe I shouldn't be confused after all. We are after all dealing with a Government.

You are right.
From my experience, this 30/60/90 rule is largely a myth.
Often misunderstood by lawyers. Its a ruling in a court case and applicable for Consular Processing only and not AOS.
See below and draw your conclusion. In absence of any hard data, IMHO,
this just festers fear mongering among people. lawyers want to be on safe
side and so preaches such. There are some documented cases where
IO applied this ruling for AOS but for parents AOS atleast, this is complete bonkum.

http://britishexpats.com/forum/showthread.php?t=100004
http://britishexpats.com/forum/

[TheRealCanadian]

Originally Posted by arun_parv

So if you applies for the AOS after a 100 days or 150 days how does it change the intent in any way from the point of view of USCIS?

It doesn't. It merely changes their ability to question the intent and claim misrepresentation at the POE.

The bottom-line is there is an intent on part of certain citizens to sponsor non-immigrants to this country whether AOS or CP. As long as the non-immigrants don't enter the country illegally what difference does it make?

First off, there's no automatic intent. My parents and sister have no intention of immigrating to the US, and I have no intention of sponsoring them. I would hope that they continue to remain able to enter and depart the US as visitors, because they clearly meet the statutory requirements for B status - a foreign residence which they have no intention of abandoning. That's the law, as written, and if your parents intend on abandoning their foreign residence and immigrate during their current stay in the US, then yes, they are breaking the law.

The alternative is to have visa officers simply automatically reject all B visas for the parents of US citizens. Go read the B visa forums; you're seeing that more and more.

So I take advantage of the fact that they are here and opt for AOS.

While that's convenient for you, somehow I don't think that you would find it convenient if USCIS decided to ignore the law because it was convenient for them. Would you like it if the local USCIS office decided to reduce its backlogs by arbitrarily rejecting your parents' case? We have laws in this country, and we expect the government, citizens and immigrants to follow them.

Instead they choose to make things cumbersome for those who are likely going to abide by the law anyway.

But you've already clearly indicated that your parents are not going to abide by the law.

[TheRealCanadian]

Originally Posted by tdas63

From my experience, this 30/60/90 rule is largely a myth.
Often misunderstood by lawyers. Its a ruling in a court case and applicable for Consular Processing only and not AOS.

The link below quotes a State Department manual, so it's clear it can only affect CP. DOS has no ability to regulate what USCIS/INS does. The actual premise of these dates are a federal court case called Seihoon v. Levy and is very much in effect and refers to INS (now USCIS).

I don't see a lot of applications of it, admitted. But I see a lot of B visas arbitrarily rejected, refused entries in B status and some I-94s annotated NO EOS/COS.

While people trying the B->AOS route may succeed today, each occurrence means more B visa rejections for everyone else.

[arun_parv]

"It merely changes their ability to question the intent and claim misrepresentation at the POE."

So, why make a law that you do not even have the power to enforce?

"First off, there's no automatic intent. .."

Maybe you should learn to read carefully before standing on your high pedestal and preaching. I didn't say there was an automatic intent. I said "The bottom-line is there is an intent on part of certain citizens..."..the key word being certain i.e. there are some citizens who intend sponsoring family for permanent residency, that is a fact

"That's the law, as written, and if your parents intend on abandoning their foreign residence and immigrate during their current stay in the US, then yes, they are breaking the law."

How are they when the application process on the USCIS website says that they can apply for AOS if they are already legally in the US? I don't see anything that suggests that temporary immigrants are not allowed to apply for the AOS. If you see something like that let me know.

"We have laws in this country, and we expect the government, citizens and immigrants to follow them."
Sounds like you preach a lot. You are not the only law abiding citizen of this country. We all know what is expected of us. These posts are our efforts to understand the process. If we didn't care about the law we wouldn't be on this forum asking and learning.

"But you've already clearly indicated that your parents are not going to abide by the law. "
No I didn't. This was just an example for me to understand the reasoning behind the law. My parents aren't even visiting this year in reality. Neither have they made any decision of wanting to immigrate.

In fact I am going to call the USCIS one of these days and ask them about this.

[tdas63]

Originally Posted by arun_parv

"It merely changes their ability to question the intent and claim misrepresentation at the POE."

So, why make a law that you do not even have the power to enforce?

"First off, there's no automatic intent. .."

Maybe you should learn to read carefully before standing on your high pedestal and preaching. I didn't say there was an automatic intent. I said "The bottom-line is there is an intent on part of certain citizens..."..the key word being certain i.e. there are some citizens who intend sponsoring family for permanent residency, that is a fact

"That's the law, as written, and if your parents intend on abandoning their foreign residence and immigrate during their current stay in the US, then yes, they are breaking the law."

How are they when the application process on the USCIS website says that they can apply for AOS if they are already legally in the US? I don't see anything that suggests that temporary immigrants are not allowed to apply for the AOS. If you see something like that let me know.

"We have laws in this country, and we expect the government, citizens and immigrants to follow them."
Sounds like you preach a lot. You are not the only law abiding citizen of this country. We all know what is expected of us. These posts are our efforts to understand the process. If we didn't care about the law we wouldn't be on this forum asking and learning.

"But you've already clearly indicated that your parents are not going to abide by the law. "
No I didn't. This was just an example for me to understand the reasoning behind the law. My parents aren't even visiting this year in reality. Neither have they made any decision of wanting to immigrate.

In fact I am going to call the USCIS one of these days and ask them about this.

Arun
You are trying to beat a dead horse here ;>). Lots of good info and mis-info on this forum and its one of them. 30/60/90 Rule is a myth propagated by some and changing b1/B2 to
AOS does not break the rule diddly squat. All of you on your high horses, plz
come down. If your B2 visa gets rejected, dont blame others for it
who does change status legally from B2->AOS and try to see why you got rejected in first place.
For those looking for answer for 30/60/90 rule for your parents, dont listen to the so called 30/60/90" rule here. Information sprouted on this
forum are so called 'myth' with not a single case to substantiate.

Lastly: I did ask the IO point blank for 30/60/90 rule after interview is over and he goes like "What !"..draw your own conclusion

Do your own research.
Thank you.

[arun_parv]

Also, looking at the instructions for form 485, there is a 12 point listing under: "Who Is Not Eligible to Adjust Status.". According to this form it is perfectly legitimate for certain types of visitors to apply for AOS.

[tdas63]

Originally Posted by arun_parv

Also, looking at the instructions for form 485, there is a 12 point listing under: "Who Is Not Eligible to Adjust Status.". According to this form it is perfectly legitimate for certain types of visitors to apply for AOS.

Absolutely. there is no 30/60/90 rule for B2->AOS unless your I-94
is marked as such as No COS or AOS. If IO wants to be anal, he can be so
without breaking a sweat and does NOT need to bring an archaic ruling (30 years old) thats intended for state department
and was meant for consular processing. At least this is the case for the parents AOS from B2

[TheRealCanadian]

Originally Posted by arun_parv

So, why make a law that you do not even have the power to enforce?

What on earth are you talking about?

I said "The bottom-line is there is an intent on part of certain citizens..."..the key word being certain i.e. there are some citizens who intend sponsoring family for permanent residency, that is a fact

Sure, which is why relatives get B visas rejected all the time.

I don't see anything that suggests that temporary immigrants are not allowed to apply for the AOS. If you see something like that let me know.

There's no law. So here's a suggestion. Why don't your parents file the I-485 a week after entering in B status and let us know how well that works out? Heck, I'm just some guy on an internet message board (like tdas63) so I can provide all sorts of suggestion. The only ones who would suffer any consequences would be your parents.

But if you're so sure that there's no 30/60/90 day rules and any non-immigrant can adjust status at any time, why don't they get a head start on the I-485 and file it right after entry? Sound like a good idea?

In fact I am going to call the USCIS one of these days and ask them about this.

Call them several times - you'll get several answers. None are guaranteed to be correct.

[TheRealCanadian]

Originally Posted by tdas63

an archaic ruling (30 years old) thats intended for state department
and was meant for consular processing.

Seihoon v. Levy has no such restrictions on who it was intended for, or what process. In fact, it was based on an appeal of an INS proceeding, not a State Department effort (since those are not subject to judicial review).

If you actually understood the topic at hand you would have known that.

[Vik Pal]

Originally Posted by TheRealCanadian

Sure, which is why relatives get B visas rejected all the time.

I know I've had this argument with you guys over this issue in the past but still let me buzz in as well....
Is this the only reason that relatives B visas get rejected?
Do you have any evidence to prove that the interviewing officer at the consulate specifically told the applicant that their visa is being rejected because their fellow countrymen have been AOS'ing once in US?
If this were true would it not have made sense for State Department to actually just impose blanket ban on B visas to that particular country?

Originally Posted by TheRealCanadian

Call them several times - you'll get several answers. None are guaranteed to be correct.

Since facts have not been clearly established then why argue?

[arun_parv]

"What on earth are you talking about?"
Obviously something beyond your comprehension and beyond my ability to explain to you so I won't even bother trying

"Sure, which is why relatives get B visas rejected all the time."
Why stop at that, find more things to blame.. after all you are a "volunteer moderator" whatever that means. Your responses are more akin to a provocateur than a moderator

"There's no law. So here's a suggestion. Why don't your parents file the I-485 a week after entering in B status and let us know how well that works out? Heck, I'm just some guy on an internet message board (like tdas63) so I can provide all sorts of suggestion. The only ones who would suffer any consequences would be your parents."

You don't have to worry about my parents suffering consequences they are well taken care of.


"Call them several times - you'll get several answers. None are guaranteed to be correct. "

But of course... only you have the right answers everyone else is a law breaking moron out to ensure that people don't get B visas to the United States

You seem very bitter...enough for me to not let you get under my skin and never monitor this thread again.
Good luck with your B visa trials and tribulations!

[Triple Citizen]

The consul would label such a rejection as 214(b).
You may call me Darth Vader if you so desire.

Originally Posted by Vik Pal

Do you have any evidence to prove that the interviewing officer at the consulate specifically told the applicant that their visa is being rejected because their fellow countrymen have been AOS'ing once in US?

[Vik Pal]

Originally Posted by Triple Citizen

The consul would label such a rejection as 214(b).

Below is the text of 214(b)

http://travel.state.gov/visa/laws/te...rams_2173.html

Can you read this and explain where the scenario under discussion in this thread mentioned in the text?

Besides B visas there are others too (E, F, J, M, O-2, P, Q, and TN) which fall under same category.

If you read the guideline it is clear that it is very easy to stamp 214(b) rejection but does that happen only because B visa holders are filing AOS in US? You may be right that this may be one of the reasons that may lead to suspicion in minds of the officer that the current applicant may do the same but there is no written rule and mostly 214(b) is very general and discretionary. The officer, due to enormous experience, may infer the same just by looking at the body language of the candidate.

Also, we would like to know in which country are all these so claimed B visa rejections taking place? has anybody looked at visa stats and noticed any precipitous decline in B visas issued in a specific country or at a particular post?

[Triple Citizen]

Correct. The mere suspicion of an applicant not returning is enough for the 214(b) to be applied.

Originally Posted by Vik Pal

You may be right that this may be one of the reasons that may lead to suspicion in minds of the officer that the current applicant may do the same

Correct again. There is no such language mentioning countries whose nationals AOS from B-2 visas should be automatically rejected.

Originally Posted by Vik Pal

but there is no written rule and mostly 214(b) is very general and discretionary.

Islamabad is one example. The percentage of refused B-2 applications has risen steadily from the 70s onwards. As more and more Pakistanis moved to the US and naturalised, cases of their parents AOSing from B-2 visas also rose. Such information is tabulated and shared between the various departments in order for appropriate action to be taken. How do I personally know that? Hear me out. In the mid 90s I was living in Kuwait and part of the diplomatic corps there. One of my good friends was then posted as the vice-consul in the US Embassy. According to him, the INS (back then) used to tabulate the following:-
(1) B-2 holders who disappeared
(2) B-2 holders who AOSed
(3) B-2 holders who EOSed
(4) B-2 holders who COSed
(5) Other irregularities for other visa statuses

These tables were sent to all US embassies for review. Unofficially such applicants were called "Jumpers". Embassies (and specifically consuls) who approved these applicants were singled out for demerit points. The more demerits you collected, the more incompetent you looked. My friend did not bat an eyelid when approving B-2 visas for Kuwaiti citizens. This was pre-911 and background checks for all male Arabs was nonexistent. However my friend went through DS-156s filed by Indians and Pakistani with a fine comb. He did this to ensure he does not the next "jumper" in. It is much tougher now. Consuls don't want to let the next "jumper" and the next "Atta" in. So they have to double their due diligance skills. It is not an easy job. So with each passing year, consuls trained themselves to consider certain nationalities "more guilty than others". This was primarily done to make themselves look more competent in doing what they were hired to do. This was a dual carriageway mind you. The State Department also had an avenue to get back at the Justice Department. Consuls often returned I-797s approved by the INS after interviewing the applicant, citing incompetence on part of the INS by not being able to catch fraud, etc.
This is all verbal. My source of knowledge here is based on personal friendship. It is your decision to believe it or not.

Originally Posted by Vik Pal

Also, we would like to know in which country are all these so claimed B visa rejections taking place? has anybody looked at visa stats and noticed any precipitous decline in B visas issued in a specific country or at a particular post?

[Vik Pal]

Originally Posted by Triple Citizen

It is your decision to believe it or not.

I believe you!! You may be correct but my point is that if US govt wanted then they could have easily put an end to the practice of "jumping" by simply banning AOS for folks on temp visas like B1/B2. But they allow AOS in the first place and then fret about it. Call it stupidity or a legal loophole. Ordinary people have no clue about it and even legal community does not have clear idea because of absence of any written legal guidelines. In such a situation individuals have to take their own decisions based on their circumstances. There are many people whose parents are elderly and alone to go back home so they have to file AOS. I would not blame them because they have a need, and the law allows them to, so why not? Those who don't have such or other compulsions opt for CP. Thinking about consequences on future B applicants is asking too much from the current crop of individuals. (btw doesn't it apply universally in every area these days that "who cares about what happens down the road"?)

[Triple Citizen]

It is indeed a grey area that needs to be addressed in my honest opinion.

Originally Posted by Vik Pal

But they allow AOS in the first place and then fret about it.

[sk28]

30/60/90 day rule usually does not apply to immediate family AOS
Here is the case law, right from the BIA:

Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980)


According to Matter of Cavazos, in the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain.