need urgent help!!!

[bjorn]

The Real Canadian

Keep in mind that TN status is ONLY for Canadians and Mexicans through NAFTA. That's a completely different ball game than people from anywhere else. As a result, it cannot be used for others. Basically, as you probably know, the US immigration gives Canadians and Mexicans a break due to bordering the US. Other nations just don't get that break. Also, it's only for certain professions rewuiring specialsy skills. You cannot use TN to move to the US and become a custodian.

 

[TheRealCanadian]

Bjorn, you're now completely offtrack from where you started.

You made the incorrect assertion that a non-immigrant in a status that does not permit immigrant intent cannot file an I-485.

You're now discussing filing I-485s without immigrant visa petitions (which no one has ever suggested) or 'special exceptions' for TN holders (that also do not exist in law). I'm not sure where you are going with this. So let's conclude for everyone.

If you are eligible to file an I-485 based on an approved immigrant visa petition or eligible to file an IR I-130 or an I-140 where the priority dates are current, then the fact that you are in a non-immigrant status without dual intent protections (such as B, E, F, J, L, O, P, Q, R, TN) will NOT prevent you from filing an I-485, and will NOT cause the I-485 to be denied.

 

[bjorn]

As far as the TN holder special exception, just read the US Department of State website (link at the bottom). IT' a NAFTA privilege for Mexicans and Canadians, regardless what you may think. The US DOS website holds the official version and it definitely exists. My former neighbor, a Canadian, applied this special exception rule when coming here. You clearly know a great deal about US immigration, which I highly respect you for, but I doubt that you know things that the US Department of State is unaware of.

Again. you cannot be on F-1 and just file AOS without a sponsor, regardless what you may say. If that was possible, F-1 students would do this all the time, but reality is that they don't simply because it's not possible without going through a sponsor. Well, they can file, but they will get denied. I have seen that several times at different universities.

Look here for the TN law. It's official and definitely exits. It's similar to the law applied in the European union that applies only to EU citizens, so using a US immigration example that only is valid for Canadians is not a credible example.

http://travel.state.gov/visa/temp/types/types_1274.html

 

[TheRealCanadian]

My former neighbor, a Canadian, applied this special exception rule when coming here. You clearly know a great deal about US immigration, which I highly respect you for, but I doubt that you know things that the US Department of State is unaware of.

<sigh> I've had two TNs, and I'm aware of their citizenship restriction. I brought them up because they're a perfect example of a non-immigrant status without dual intent protection - yet people legally file I-485s when it that status, and get them approved.

And while the TN may be specific to Canadians and Mexicans, that fact is totally irrelevant when it comes to I-485 filing.

Again. you cannot be on F-1 and just file AOS without a sponsor, regardless what you may say.

Bjorn, take a deep breath and go through this entire message thread and please quote me where I say anything of the sort. The only thing that anyone has stated is that an F-1 holder may file an I-485 if they are otherwise eligible, despite the fact that F-1 status does not have immigrant intent protection. You are person who is bringing up this non-existent claim that F-1 holders can file an I-485 without an underlying immigrant visa petition.

 

[TheRealCanadian]

Please provide a direct quote (that contradicts the information on many immigration lawyer websites such as above quote) that says that one can apply for AOS while on a visitor's visa.

Here's the I-485 ajudication procedures. ILW has rebranded the document, but it is a genuine INS document. I have an older, original copy at home:

http://www.immigrationportal.com/attachment.php?attachmentid=13454

Please point out to me where it states that an I-485 petition filed by a B visitor non-immigrant legally admitted into the US should be denied, simply because the alien is a B visitor.

(hint: it doesn't)

Trust me. I know the law, I don't need to google around.

 

[Streamflow]

If you are eligible to file an I-485 based on an approved immigrant visa petition or eligible to file an IR I-130 or an I-140 where the priority dates are current, then the fact that you are in a non-immigrant status without dual intent protections (such as B, E, F, J, L, O, P, Q, R, TN) will NOT prevent you from filing an I-485, and will NOT cause the I-485 to be denied.

A small correction: O-1 ("Aliens of Extraordinary Ability") and O-3 (dependents of O-1) are considered "dual intent" categories whereas O-2 (support personnel of O-1) must have purely nonimmigrant intent.

 

[bjorn]

 

[bjorn]

The Real Canadian
As quoted:" You are person who is bringing up this non-existent claim that F-1 holders can file an I-485 without an underlying immigrant visa petition."
This is ecatly what I am saying you CANNOT do, just read my messages. The nature of the TN rule is the benefit in and by itself, by the way. It offers an opportunity to get the green card proces started that people from other nations don't have. I still don't understand how one can come here on B-visa and then just file for AOS and get the green card. If it was that simple, why don't all the Indians, for example, trying to immigrate here just to it that way rather than through employment that all of them do now, but due to the H-1B cap being reached will no longer be able to achieve? I snicerely believe that we are actually holding many of the same views, but due to the limitations of the medium of comversation, we misinterpret and misrepresent based on the limitations written language in electronic format has.

 

[curiousGeorge]

I still don't understand how one can come here on B-visa and then just file for AOS and get the green card. If it was that simple, why don't all the Indians, for example, trying to immigrate here just to it that way rather than through employment that all of them do now, but due to the H-1B cap being reached will no longer be able to achieve?

bjorn,
I'm sorry to say, you're arguing with the wrong person. TheRealCanadian knows this stuff like the back of his hand.

You are wrong. You can file for AOS from B1, just like F1, TN, and all the other visa's that don't allow for dual intent. Many people seem to misunderstand that part of the law.
What statuses that do not allow for dual intent do NOT allow to do is apply for B1, F1, or TN when you have a pending I-485. Unlike an H1B, and an L1, which allows for dual intent, you can keep extending H1/L1 visas even after having filed AOS.

Why don't more people file AOS from B1? Simple.....you can't legally work on a B1, and often it’s only issued for only 6 months at a time, and the big one, ding! ding! you need a sponsor to file for AOS and that's not always easy to get, especially if you can't work, and if your time is limited, as it is on a B1.

But if one of the lucky few who can get by without working, and you can secure a sponsor that is willing to help you file AOS before your B1 expires, then you're in luck, and you have not broken any laws.

However, you cannot just enter the US on a B visa and expect to get the AOS approved. By gettting the B-visa approved in the first place, you had to "promise" the USCIS, as with F-1, that you will depart the US prior to the visa expiring,

Here is an explanation of the word "intent" with regard to immigration issues in a legal reference.

Choy v. Barber, 279 F.2d 642, 645-46 (9th Cir. 1960)

there is a great difference between wanting to stay and intending to stay and proof of a desire to stay is not proof of an intent to stay.

(citing Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957)

a desire to immigrate to the United States, should opportunity arise, is not inconsistent with nonimmigrant intent

 

[curiousGeorge]

Where's curiousGeroge when I need him? He's living proof that you can file an I-485 from TN status with no issues whatsoever.

TheRealCanadian,
Kindly note: I would have shown up a lot sooner if you had only spelled my name correctly.

 

[bjorn]

cusriousGeorge

Thanks for come clarifications.

You are only referring to B-1 (business visa) in your message. Does the B-2 visitor visa then work the same way as the B-1 you mention? The original thread starter specifcally mentioned a visitor's visa - which I assume to be B-2. That was the original conversation, if B-2 visitor's can apply for AOS while in the US, with or without any sponsor

If B-2 works the same way as B-1, which I have understood The Real Canadian to say all along and that I have been refuting, you can then actually apply for AOS while here on B-2 visitor's visa? Is that correct? If so, because of the H-1B cap being reached now for this year (meaning that many aspiring immigrants just don't have a chance to get a GC due to H-1B being their only realistic option following their F-1 status) can they actually then go to their home country, apply for B-2 visitor's visa, go back to the US and apply for AOS, and then go back home while their AOS is pending?

If so, what category in the DOS Visa Bulletin do they fit into if they enter on B-2 visitor's visa and file AOS (family, employment, or diversity), as B-2 does not appear to be neither, and it's certanly not marriage?

However, if the B-2 visa does not allow for green card filing, then the issue/confusion in this discussion all along has been that we went from the original B-2 visitor's visa specific conversation to a general B-visa conversation, which apparently has 2 opposite answers, so while I was thinking of B-2 (based on the topic starter's message) in the discussion about the general B-visa, The Real Canadian was thinking B-1.

Finally, I fully know that The Real Canadian knows his stuff. I have read many of his posts and am very impressed with his knowledge and I know that this community is fortunate that he is active on this forum to help people out.

Right now I'm trying to figure out if I misunderstand the entire B-2 and AOS issue or if the communication has caused lots of confusion leading misunderstandings.

My interpretation of the conversation has been that claims were made that one can enter on F-1 and B-2 visas and then just apply for AOS WITHOUT a sponsor such as an employer, family member, or spouse. If that was the case, I have kept asking why F-1 students and B-2 visitors don't do that and then just leave the US until they get the approval, assuming that no temporary working visa is available to them (H-1B cap reached, for example).

What I have learned is how a dual intent visa works. Previously I thought that single intent visas literally prohibited you from filing for AOS and only dual intent visas do and that you have to convert from single intent to dual intent to file AOS (F-1 to H-1B for example).

 

[curiousGeorge]

Does the B-2 visitor visa then work the same way as the B-1 you mention?

With regards to AOS, B1 & B2 work the same way.

you can then actually apply for AOS while here on B-2 visitor's visa? Is that correct?

That is correct. As long as the B2 applicant also has either an approved I-130, I-140, or they won the diversity lottery. But you only have a 6 month window to apply for the I-485, so you need to get an approved I-130, I-140, or win the diversity lottery within that timeframe

can they actually then go to their home country, apply for B-2 visitor's visa, go back to the US and apply for AOS, and then go back home while their AOS is pending?

They can, but its not practical, especially if they are doing employment based AOS......The minute the person changes from H1b to B2, they are no longer eligible to work legally. They cannot take advantage of AC-21 until the I-485 has also been pending for more than 6 months, so they are at risk of getting the I-485 denied if they take a leave of absence at this point. They can only leave, once they get an approved AP in thier hands, or else thier I-485 will be considered abandoned. Once they filed for I-485, the applicant will soon get their AP and an EAD, so they don’t need an H1b, or an B2 or anything afterwards. Your example wouldn't work in the employment category.

In the family based category, if someone has filed an I-130 for their family member who does not need to work, and after the I-130 is approved, the family member comes to the US in B1 or B2 status, and they file the I-485 on the basis of the approved I-130, and the I-485 would also eventualy get approved. But at that point, why even bother doing AOS? If the family member had just stayed in their home country for a few more months and filed for consular processing, they would have gotten approved much quicker. Its just not practical.

The same goes for DV Lottery. The person can enter in B2, and file for AOS, EAD and AP on the basis of the winning the lottery. The problem that often occurs with DV->AOS applicants is that the I-485 sometimes takes longer than Sepember 30th to approve, and if so the applicant would not get a green card. Again, its just not practical.

If so, what category in the DOS Visa Bulletin do they fit into if they enter on B-2 visitor's visa and file AOS (family, employment, or diversity), as B-2 does not appear to be neither, and it's certanly not marriage?

The DOS category they are in is not based on the visa they were in before filing AOS. The category is based on the category that the I-485 is filed in. If they have an approved I-130, they would have filed the I-485 in the family category. If they have an aproved I-140, they would file the I-485 in the employment category. If they won the diversity lottery, they would file the I-485 in the diversity category, and so on...

The bottom line is...its doable and legal, and I'm sure some people have done it....but not practical.

Thus again, there is no advantage in following the B2->AOS route, unless the family member is in dire poverty in their home country, and cannot wait to get to the US.

 

[bjorn]

Thanks again,

I do fully understand what yo are saying, but I have probably NOT successfully made my questions clear, as you don't seem to adress it - that of a sponsor needed prior to filing the I-485. You mention the fact that a form of sponsor is needed (I-140, I-130, DV lottery win). I have been trying to phrase my points and questions that it is assumed that you do NOT have such sponsor and CANNOT file that immigrant petition prior to filing for AOS. Let me use an example.

Joe Immigrant comes to the US on a B-2 visitor's visa. He does NOT win the DV lottery. He does NOT find an employer to file the I-140. He does NOT marry. He does NOT have a relative in the US. In short, he has NO sponsor whatsoever to file an immigrant petition, so he completely skips that step. Still, Joe Immigrant files the I-485 WITHOUT any form of sponsor and claims B-2 status. Will he get approved?

My reasoning is NO, he will get an I-485 denial because he has no form of sponsor to file the immigrant petition and get such approved that qualifies him for filing the I-485.

My understanding/imterpretation of what has been said in this thread is that Joe Immigrant will still qualify and get approved, even though he has no sponsor such as employer, DV lottery win, family member, or spouse and therefore does not file an immigrant petition prior to filing the AOS. My point I have been trying to convey (though very unsucesfully apparently) has been that Joe Immigrant will get denied because an immigrant petition was never filed and approved.

Is my confusion tied to a problem of semantics or immigration law?

 

[dyingforgc]

Joe Immigrant comes to the US on a B-2 visitor's visa. He does NOT win the DV lottery. He does NOT find an employer to file the I-140. He does NOT marry. He does NOT have a relative in the US. In short, he has NO sponsor whatsoever to file an immigrant petition, so he completely skips that step. Still, Joe Immigrant files the I-485 WITHOUT any form of sponsor and claims B-2 status. Will he get approved?

Answer to your question is NO. you are missing very important point every time we explain you. without sponsor you can't even file I-485, it won't be accepted at first place. no acceptance,no denial. It's very immigration common sense that one can't file for I-485 w/o sponsor and no one in this entire thread said otherwise besides you. let's conclude this thread.

 

[bjorn]

NO - That's exactly what I have been saying for 2 days but have interpreted yourself and The Real Canadian as saying YES, he still can. We have been talking in circles while trying to convey the very same conclusion while assuming the other held the opposite and incorrect view. The issue of semantics is obvious, especially when tied into electronic communication. Concluded.

 

[davidyoung]

If that was the case, millions of visitors and students would file for AOS yearly, but obviously that does not happen simply because by the nature of being a visitor or students, you simply doe not fall into one of the immigration categories (not counting asylum and refugees): employment, marriage, family), and as a resul do not qualify for AOS. B and F visas are non-immigrant, single intent visas, regardless of your anecdotes. I know lots of people who have tried filing for AOS while on F-1 and B visas but were denied simply because the F-1 and B visas did not qualify them. you tell me, under which immigration category does B-visas qualify (assuming not marriage, employment, nor family is a factor for the B-visa holder)??? There is a reason for the disqualification of B and F-1 visa holders, and that is if they would qualify for AOS there would no longer be a need for labor certification and the employment category, as people would choose to pursue AOS through being a visitor or student rather than having o go through the painful process of LC and and employment immigration.

.....You can file for AOS as long as you entered US legally and you're married to a US citizen , but certain visa class do not qualify to adjust status. B1 & B2 qualify to adjust status. Crew member visa, transit visa,.....
.......................
You entered the United States in transit without a visa;
You entered the United States as a nonimmigrant crewman;
You were not admitted or paroled following inspection by
an immigration officer;
Your authorized stay expired before you filed this
application;
You were employed in the United States, without USCIS
authorization, prior to filing this application;
You failed to maintain your nonimmigrant status, through
no fault of your own or for technical reasons; unless you
are applying because you are:
An immediate relative of a United States citizen
(parent, spouse, widow, widower or unmarried child
under 21 years old);
K-1 fiancé(e) or a K-2 fiancé(e) dependent who
married the United States petitioner within 90 days of
admission; or
An H or I nonimmigrant or special immigrant (foreign
medical graduates, international organization
employees or their derivative family members);
You were admitted as a K-1 fiancé(e), but did not marry
the U.S. citizen who filed the petition for you, or you
were admitted as the K-2 child of a fiancé(e) and your
parent did not marry the United States citizen who filed
the petition;
You are or were a J-1 or J-2 exchange visitor and are
subject to the two-year foreign residence requirement and
you have not complied with or been granted a waiver of
the requirement;
You have A, E or G nonimmigrant status or have an
occupation that would allow you to have this status,
unless you complete Form I-508 (I-508F for French
nationals) to wave diplomatic rights, privileges and
immunities and, if you are an A or G nonimmigrant,
You are already a conditional permanent resident.
...............................................
Here is a link to the form USCIS WEBSITE
http://uscis.gov/graphics/formsfee/forms/files/i-485.pdf