Question about intention to immigrate

[dragon12345]

Dear all,

My mother is holding a 10 year multiple entries B1/B2 visa. This was applied almost 10 years ago and about to expire. Since I become a citizen, I try to do AOS for her before her visa expires. I have been told that to apply for AOS, I should wait 3 months after her entry to US. Otherwise, they will suspect she had the intention to immigrate long before and that violates the rules. My questions are:

1) Which rules she will violate? I try to google but cannot find anything. Does it refer to that when she applied for visitor visa, she has "checked" a box in the application form (or something like that) claiming that she had no intention to immigrate?

2) If in 1), it does refer to the time she applied for visa, it is already 10 years ago, can they still claim that she violates the rules? In fact, she didn't have intention to immigrate 10 years ago and in the first 7 years she had only visited US twice and each time 2 weeks. It is only after I have a baby, she comes more frequently in the last 3 years. And she only has the intention to immigrate last year.

3) For those who do "violate the rules", will be application be rejected right away after submission or rejected after interview?

So, if my understanding of 1) and 2) are correct, then does it mean that I don't have to wait for 3 months after her entry to US? (She already waited for 3 months. But I want to understand more so that I know better how to response to the questions in the forms)

Thanks a lot!

 

[Jackolantern]

For a B visa, the requirement for nonimmigrant intent is based on INA 101(a)(15)(B): (bolding is mine)

(B) an alien (other than one coming for the purpose of study or of performing skilled or unskilled labor or as a representative of foreign press, radio, film, or other foreign information media coming to engage in such vocation) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure;

This is also referenced in INA 214(b):

(b) Every alien (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).

So having nonimmigrant intent is not only for when applying for the visa, but also when being admitted at the port of entry.

The "wait 3 months" thing is not embedded in a law or regulation; it was inferred from a court case, and there is much disagreement about its applicability to situations like yours.

Your mother actually had immigrant intent when she entered with the B2 visa; she's just trying to hide that intent by waiting 3 months.

However, the good news for you is that for spouses, under-21 children, and parents of USC, the policy is to be lenient on the immigrant intent issue during adjustment of status if there are no other negative factors. The bad news is for other people from your country -- when your mother stays to immigrate after entering with a B2 visa, she will be added to the statistics of those from your country who used the B2 as a conduit to immigrate, and it will be a little bit harder for people from your country to obtain a B2 visa if they have a USC child living in the US. And make it a bit less likely for your country to become a visa waiver country (assuming it isn't one already).

3) For those who do "violate the rules", will be application be rejected right away after submission or rejected after interview?

Rejection for this reason would be only at or after the interview -- if there is an interview. AOS for a parent of USC often doesn't involve an interview. But I expect that if they plan to deny on this basis, they would either schedule an interview or send a "Notice of Intent to Deny" and give you time to submit a response.

 

[BigJoe5]

While, a waiver of the interview is a distinct possibility, it varies from office to office. You should seek a forum for the specific office location you are dealing with to see how things are done there for this case type.

See generally: http://www.uscis.gov/portal/site/us...7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=afm

AFM 23.2 General Adjustment of Status Issues.
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(f) Preparing for and Conducting an Interview .

If possible, you should perform a number of different steps as part of the adjustment interview process. Prior to the interview, you should review the alien’s file to:
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Even a brief pre-interview file review will often enable an experienced officer to determine whether the case merits extra attention or not. Examples of cases which merit extra attention include, but are certainly not limited to:
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· An alien who originally came to the U.S. with a nonimmigrant visa which would normally not be issued to an alien who did not have (or at least claim) significant ties in his or her home country (e.g., a spouse), but who now shows no indication of such ties.
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(h) Interview Waivers .

(1) Regulatory Authority .

8 CFR 245.6 allows USCIS to waive interviews of applicants for adjustment of status under Section 245 of the Immigration and Nationality Act (Act). The purpose of this provision is to enhance the ability of directors to efficiently and effectively manage workloads and resources; to enhance directors' abilities to direct resources into the area of fraud detection and deterrence; and, in instances where interviews are unnecessary, to reduce waiting time and burdens on the public. The regulation does not specify which Service officia ls have the authority to waive interviews. It also does not set forth the criteria to be used when determining whether an interview should be waived.

(2) Delegated Authority .

On November 4, 1992, the Executive Associate Commissioner for Operations issued a memorandum delegating the authority to waive interviews to all district directors and service center directors. These directors are responsible for the application of this provision within their individual jurisdictions. Directors were required to create written local policies and procedures to ensure that the waiver provision is applied only to cases falling within the USCIS -wide guidelines set forth in the memorandum (see paragraph 3). These local policies and procedures were intended to reflect local conditions dictating the need for further restrictions upon the application of the waiver provision. The memorandum further specified that interviews could not be waived merely to reduce backlogs.

(3) Waiver Guidelines.

All adjustment of status applicants under section 245 of the Act will continue to be interviewed, unless an individual determination has been made that an interview is not necessary, and the case falls within both USCIS -wide and local guidelines for interview-waiver cases. The determination as to whether an interview is required must be made on a case-by-case basis. A waiver of the interview requirement may be granted only if:

· the adjustment application is based upon a petition for an employment-based preference classification (I-140), accompanied by original or certified copies of supporting documents, and the principal alien will continue employment with the same individual or firm for whom he or she is lawfully employed as a nonimmigrant, or the adjustment application has been filed by a derivative spouse or child of such principal alien;

· the adjustment application is based upon an immigrant petition for an unmarried minor child of a U.S. citizen accompanied by original or certified copies of supporting documents;

· the adjustment application is based upon an immigrant petition for a parent of a U.S. citizen accompanied by original or certified copies of supporting documents;

· the applicant has been interviewed in the course of an investigation or field examination, and the adjudicating examiner determines that further interview of the applicant is unnecessary;

· the applicant is a native or citizen of Cuba filing for adjustment under the Act of November 2, 1966, or the spouse or child of such an alien regardless of their citizenship and place of birth; or

· sufficient evidence is contained in the record to support a denial of the adjustment of status application.

 

[Concerned4us]

Why the rush to file? She should return home and finish her business while waiting for consular processing. The B1/B2 visa will have no meaning once she receives her GC; it does not have to be valid for CP. Please do not say that she is just using her GC like a visa and has no reason to finish her affairs at her current home.

 

[dragon12345]

Dear all, thanks a lot for your responses (also to those who have been answering my other questions)! It's a nice forum with many nice people!