Visitor Visa and AOS

V

vidyaravich

Registered Users (C)
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.
 
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.
 
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.
 
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Jackolantern said:
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.
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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.
 
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.

tdas63 said:
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.
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tdas63 said:
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.
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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.
 
Triple Citizen said:
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.
Click to expand...

If you dont have any such information, stop throwing out information that you
think is correct.
 
Jackolantern said:
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.
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Thank you for the information
 
tdas63 said:
If you dont have any such information, stop throwing out information that you think is correct.
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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.
 
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.
 
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!!!

vidyaravich said:
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.
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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.
 
arun_parv said:
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.
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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/
 
arun_parv said:
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?
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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?
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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.
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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.
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But you've already clearly indicated that your parents are not going to abide by the law.
 
tdas63 said:
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.
Click to expand...

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.
 
"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_parv said:
"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.
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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.
 
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.
 
arun_parv said:
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.
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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
 
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