need urgent help!!!

[jimenez25]

Here is my sister story.

She came to the USA in 2002 with a visitor visa. got married to a USC and applied for adjusment of status. When they went to the interview the the application was denied. They never sent her a letter saying that it was formaly denied and what they would do next. Instead, one year letter they sent her a letter to appear with her husband for a second interview. At that time, they were getting divorse. She did not go to the interview.
She remarried two years later and reaplied for adjustment of status. When she and her new husband went to the interview, they were not given one. the officer took all the documents they brought with them and then, told them to leave. He told them that a decision was going to be send through the mail. Today they got a letter saying that both aplication are denied.

Can they do that?. I mean, they did not give them a chance to prove their marrige. Not even the chance to be intervied. My sister thougt that her case had been closed after she sent them the a copy of her divorce.

By the way, this happend in San Juan PUerto RIco.

Please some advice!!!!!!

 

[bjorn]

I think there are a couple of issues here. First, a visitor's visa (B-2) is a non-immigrant, single intent visa - to visit only and not apply for a green card, meaning that you don't qualify for a green card by the nature of the visa. That was probably the reason for the first denial and should have been explained to you in a formal letter. What they should have been done was to file a fiancee (K-1) visa application, filed by the USC on the behalf of the foreign person while the forein person was still in the home country. Once the foreign person gets that visa she can come to the US and marry within 90 days. Second, visitors marrying USC is a common method to try to achieve green card fraud, where a USC tries to make money off of a foreigner while helping to get the foreigner a green card. That's why there are strict visa rules when foreigners want to marry a USC. Imagine how many tourists and college students on B-2 and F-1 visas would enter marriages with a USC if these visa types allowed for adjustment of status. Between the marriages, what status was she in, by the way? At this point, the best bet is for both of them to move to her home country a few years, have kids, and then try applying again. That way you can follow the correct USCIS procedures and prove that the marriage is legitimate and not someone trying to fake a marriage to get a green card.

 

[dyingforgc]

I think there are a couple of issues here. First, a visitor's visa (B-2) is a non-immigrant, single intent visa - to visit only and not apply for a green card, meaning that you don't qualify for a green card by the nature of the visa. That was probably the reason for the first denial .

bjorn, you are misleading. your above justification is completely wrong. it's perfectly legal to apply for AOS when you are in US on visitor visa(B-2).

and should have been explained to you in a formal letter. What they should have been done was to file a fiancee (K-1) visa application, filed by the USC on the behalf of the foreign person while the forein person was still in the home country. Once the foreign person gets that visa she can come to the US and marry within 90 days. Second, visitors marrying USC is a common method to try to achieve green card fraud, where a USC tries to make money off of a foreigner while helping to get the foreigner a green card. That's why there are strict visa rules when foreigners want to marry a USC. Imagine how many tourists and college students on B-2 and F-1 visas would enter marriages with a USC if these visa types allowed for adjustment of status. Between the marriages, what status was she in, by the way? At this point, the best bet is for both of them to move to her home country a few years, have kids, and then try applying again. That way you can follow the correct USCIS procedures and prove that the marriage is legitimate and not someone trying to fake a marriage to get a green card.

Again above are just your speculations, which are not reality.

jimenez25:- your sister didn't appear for second interview while she was getting divorced first marriage that's the reason her first application was denied. she anticipated that her GC process was going smooth while she married second time and applied AOS again. From the day her first application denied, she is considered out-of-status. second AOS application was applied while she was out-of-status and that could be the reason for second denial. one can't apply AOS while he/she is not on valid non-immigrant status. you should consult a good lawyer to fight with this.

 

[bjorn]

I got the information right off of some immigration lawyer websites. Here are a cuple of direct quotes supporting my message:

"Under U.S. immigration law, applicants for many categories of non-immigrant visas, including tourist and student visas, are presumed to be intending immigrants. To qualify for a visa, applicants must clearly demonstrate their intent to depart the United States after a temporary stay and to abide by the purpose of the visa (business, tourism, study, etc.).

Applicants usually demonstrate their intent to depart the United States by proving that they have a stable family and economic situation to which they must return."

"Visa denials
The most frequent reason given for visa denials is Section 214(b) of the Immigration and Nationality Act: failure to overcome the presumption of immigrant intent. An applicant must convince a consular officer that he has sufficient “binding ties” to his home country or place of permanent residence that will make him return there after his visit to the United States. Students and applicants from high visa fraud countries are more likely to have their applications denied under 214(b)."

Clearly, this indicates that a visitor on a visitor's visa, just like a student on F-1, must return home upon the expiration of the visa and does not intend to immigrate to the US. 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.

 

[bjorn]

Here is another one quote from an immigration lawyer website outlining th only dual-intent visas. Neither of these is a visitors (B) visa...

"Under the Dual Intent Doctrine, some nonimmigrants are allowed to enter and/or remain in the U.S. temporarily with a nonimmigrant visa even though they have expressed a long term intent to remain permanently. Presently, only E, H-1 and L category visa holders are allowed to remain nonimmigrants while simultaneously pursuing permanent resident status. Other nonimmigrant visa holders may be denied extensions or re-issuance of a nonimmigrant visa if they appear to have a dual intent of coming to the U.S. temporarily while pursuing permanent resident status.

Again, if on a B-type visa (visitors), you cannot apply for AOS. You automaticaly disqualify.

 

[dyingforgc]

bjorn, your excerpts from immigration websites are completely irrelevant in regard to the jimenez25 initial post. It's completely legal and valid to apply for Adjustment of Status from visitor visa when one weds to US citizen. to be said that poster's sister was qualified to apply for AOS after marrying to US citizen. If she wan't qualified how USCIS accepted her application at first place and called for an interview?? She was called for an interview while in AOS.
FYI: My US citizen sister had applied for AOS for my mom who was in US on visitor visa. no issues.

Anyways, I don't want to waste my time in arguing with you. TO conclude, jimenez25 you should consult an attorney as I said in earlier post. Her application could have been denied with one of the reasons I mentioned in previous post.

 

[TheRealCanadian]

Again, if on a B-type visa (visitors), you cannot apply for AOS. You automaticaly disqualify.

That would imply that the only non-immigrants who could file an I-485 are those in H, L, K or V status, and that is certainly not the case.

Thousands of non-immigrants file valid and approved I-485s in all manners of status, including B - like my wife.

 

[bjorn]

I'm just brining up what is posted on many immigration lawyers' websites, in addition to one US Embassy website. I did a pretty extensive Google search, and the returns came back consistently as B visas cannot file for AOS because it's not dual intent. In addition to those you mentioned, E-visas apparently also qualify as dual intent. Apparently, many immigration lawyers, and the US Embassy website must be wrong - unless the assumption is that marriage is not in question. Still, the USCIS systematically deny people on F and B visas even if marriage is involved due to that there are so many fake marriages in the US for the purpose to obtain green cards. That's why another approach has to be taken following the denial to prove the legitimacy of the mariage. Moving abroad may be such step, at least I have met people who had to do that prior to getting approved due to their marriage was considered fake according to the USCIS.

 

[TheRealCanadian]

I did a pretty extensive Google search, and the returns came back consistently as B visas cannot file for AOS because it's not dual intent.

While Google results may tell you all sorts of things, the fact remains that Section 245 of the INA (which is the only result that matters) states that in order to file an I-485 one needs to be in a valid non-immigrant status, and nothing more. The I-485 processing instructions are also completely silent on the matter of specific status.

You have merely drawn the wrong interpretation of the law, which states that while immigrant intent can be used to deny visa issuance or admission to the US for many non-immigrant statuses, it does not preclude an alien from filing an I-485 down the road. Canadians have been filing an I-485 while on a TN for over a decade now.

 

[jimenez25]

thankyou so much for your advice. It is very helpful

 

[jimenez25]

if you guys find out anything else that could help us, please post it here.

 

[bjorn]

I'm not interpreting the law. I'm merely repeating what is stated on immigration lawer's and embassy websites. I think we both are right. If marrying a USC, you can be the spouse of the primary applicant - USC, but you cannot be the primary applicant with no other applicant to support you. You mention "...it does not preclude an alien from filing an I-485 down the road." Of course not. You can always change form a singe-intent visa such as F-1 or B to a dual intent vis such as H-1B. 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, unless you change to another type that allows for AOS filing. However, there are 2 very real reasons why B-visa holders get their AOS denied when marrying a USC:
1) Since you promised the USCIS that to get your visa you would depart the US before it expired, by applying for AOS you simply contradict that promise, as your intent changed (filing for AOS) while still telling the USCIS an opposite intent (still on B-visa and thus wil depart US).
2) People who enter the US on 30 day visitor's visas and immediately find a USC to marry and then file for AOS, that has immigration fraud written all over it. These is a business side of this practice where a USC make money. It was particularly popular when the Berlin wall fell in 1989 as many desperate Eastern Europeans were willing to pay to marry a USC or Western European citizen to try to get a US or Western European permanent residency. I'm sure it was practices in Canada as well. Immigration fraud through marriage is well documented and understood by the USCIS. It's actually a part of "organized crime." That often starts with people on visitor's visas who the get denied due to the USCIS considers the marriage a crime scheme to obtain a gren card. That can very well be the reason for the denials in the case of the thread starter here.
http://immigration.about.com/library/weekly/aa081903a.htm

 

[TheRealCanadian]

You mention "...it does not preclude an alien from filing an I-485 down the road." Of course not. You can always change form a singe-intent visa such as F-1 or B to a dual intent vis such as H-1B.

Please read my post again. There is absolutely no requirement that an alien be in H or L status before filing the I-485. Section 245 clearly states that the alien needs to be in a valid non-immigrant status at the time of filing, nothing more. If you read these forums you will find lots of folks who filed an I-485 when on an F-1, or a B-2 like my wife.

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,

Actually, you can do this, provided you don't file the AOS within the first 30-60 days. An alien can change their intent after entrance, which is perfectly legal.

unless you change to another type that allows for AOS filing.

Please quote the relevant section of the INA or regulations to tell us what non-immigrant types "allow for AOS filing". H and L have explicit dual intent protections (meaning they cannot be denied for mere immigrant intent) but you are extending that to make the totally unsupported claim that they are the only non-immigrant statuses that "allow for AOS filing". There is no such thing.

Since you promised the USCIS that to get your visa you would depart the US before it expired, by applying for AOS you simply contradict that promise, as your intent changed (filing for AOS) while still telling the USCIS an opposite intent (still on B-visa and thus wil depart US).

But you're allowed to change your intent, and USCIS explicitly recognizes that. According to your logic, a B visitor could not file a COS to H-1 since the intent has changed.

People who enter the US on 30 day visitor's visas and immediately find a USC to marry and then file for AOS, that has immigration fraud written all over it.

But that is related to the 30 days and not the B status. If an H-1B holder entered the US and quit his or her job 30 days later to marry a USC, USCIS could legitimately claim fraud there as well.

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.

 

[dyingforgc]

I wouldn't bother to convince you that what you say is incorrect as its perfectly legal to file AOS while one is on valid non-immigrant visa. Again repeating that my USC sister filed for AOS for my mom who was on visitor visa in USA. no issues. Concluding this thread.

I'm not interpreting the law. I'm merely repeating what is stated on immigration lawer's and embassy websites. I think we both are right. If marrying a USC, you can be the spouse of the primary applicant - USC, but you cannot be the primary applicant with no other applicant to support you. You mention "...it does not preclude an alien from filing an I-485 down the road." Of course not. You can always change form a singe-intent visa such as F-1 or B to a dual intent vis such as H-1B. 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, unless you change to another type that allows for AOS filing. However, there are 2 very real reasons why B-visa holders get their AOS denied when marrying a USC:
1) Since you promised the USCIS that to get your visa you would depart the US before it expired, by applying for AOS you simply contradict that promise, as your intent changed (filing for AOS) while still telling the USCIS an opposite intent (still on B-visa and thus wil depart US).
2) People who enter the US on 30 day visitor's visas and immediately find a USC to marry and then file for AOS, that has immigration fraud written all over it. These is a business side of this practice where a USC make money. It was particularly popular when the Berlin wall fell in 1989 as many desperate Eastern Europeans were willing to pay to marry a USC or Western European citizen to try to get a US or Western European permanent residency. I'm sure it was practices in Canada as well. Immigration fraud through marriage is well documented and understood by the USCIS. It's actually a part of "organized crime." That often starts with people on visitor's visas who the get denied due to the USCIS considers the marriage a crime scheme to obtain a gren card. That can very well be the reason for the denials in the case of the thread starter here.
http://immigration.about.com/library/weekly/aa081903a.htm

 

[bjorn]

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.

 

[bjorn]

The Real Canadian,

You are exactly saying what I have been trying to say all along but have not succesfuly communicated. You can change the intent by changing visa type to H-1B and then qualify for AOS. However, my point is that you just cannot enter as B or F-1 visa holder and then just file AOS the next day. Well, you can always file, but you will likely get denied due to those visas not being dual intent. That claim has been supported on these types of immigration forums by immigration lawyers in the past as well. Again, why do people have to go through LC and employment to get their GC if they can do that through F-1 much easier, as you mention??? It makes no sense.

The USCIS document that explains the visa types that qualify for AOS filing is actually to be found on the I-485 application form in the instructions, including checking the appropriate box under which category you qualify. There is no box for visitors or students, but only for employment, marriage, family, Cubans, yada yada yada. though. There is an "Other" box in which you also have to explain how you qualify. So that leaves the "other" box, and how would you explain that you qualify as a visitor on B visa? Of course fraud can happen with H-1B as well, but the chances are less as they have already received a visa for themselves and probably do not have the same level of desperation as they have more time (6 years) to meet and marry someone, thus building their case about a legitimate marriage much stronger than someone who simply enters and marries the next day as a visitor. By the way, what's a TN status?

 

[jimenez25]

There is something I must leave clear. My sister got her visa B2, three years before she got married. It was valid for another 7 years when she married her first husband. She is native of the Dominican Republic and was residing in a british island where she met him. She visited him in USA at list twice. On her last visit they decided to get marry. So it was not like she got a one entry visa an found a USC and got married.

I don't want you guys to get the wrong impression just because she got married again.

 

[dyingforgc]

you are talking extraneous stuff here, which is not making any sense.

In order for one to file AOS, he/she needs to be on valid non-immigrant visa plus need to have sponsor (Employer, Family, Marriage etc.). Millions of visitors can't do this as not everyone has USC family, spouse in the country. do you know that students can file for AOS under employment category and completely avoid h1-b stage??? That said, ofcourse students first need to find for an employer (to be qualified for GC under employment category)who can process their GC while they study. for instance if student A came to US and immediately future employer started his/her GC process, he is completely legal to apply for AOS (obviously after labor, I-140 ). Thus h1-b can be avoided completely. bjorn, you can't just post things here by googling. you need to understand how system works in practical and its loop-holes.

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.

 

[TheRealCanadian]

You can change the intent by changing visa type to H-1B and then qualify for AOS. However, my point is that you just cannot enter as B or F-1 visa holder and then just file AOS the next day. Well, you can always file, but you will likely get denied due to those visas not being dual intent.

You continue to miss my point. You need to be in any valid non-immigrant status to file for an I-485, not a non-immigrant status that has dual intent.

Again, why do people have to go through LC and employment to get their GC if they can do that through F-1 much easier, as you mention??? It makes no sense.

I've never claimed that. I've merely stated that if they are eligible to file an I-485 based on an approved I-130, I-140 or I-360, the fact that they are in a valid non-immigrant status other than L or H will not lead to their adjustment being denied. You still need a basis to file an I-485.

By the way, what's a TN status?

A non-immigrant employment status without dual intent provisions that many people have before their I-485s are filed and approved.

 

[bjorn]

The real Canadian

"do you know that students can file for AOS under employment category and completely avoid h1-b stage???"

I understand how that can be done, but my point is that you need to go through some other stage to qualify, in other words having a sponsor (employer, family member, or prospective spouse). Merely filing for AOS while on F-1 visa without a sponsor to get you through the LC and I-140 stages, you don't qualify. You need that employer, for example. However, in the past, with the long LC process and H-1B visas available the entire year, it pretty much never happened that employers hired people while on F-1 to initiate the LC process, so OPT and H-1B was the only realistic option. What employer would start the LC for a college student and then wait 2 years for the LC to clear? Now with PERM, that's a different ballgame, especially since the H-1B cap is already reached for this year and if the student is qualifying for the non-retrogressd categories. My interpretation of your previous comments was that you don't need any sponsor whatsoever to qualify for AOS if on, for example, F-1. Since you now outlined the LC and I-140, we are one the same page, we just communicated about it differently. That's the limitation of online communication. Also, I admit, I do not know the loopholes. I do lots of online research to find a consistent view and use that as a base.