Urgent help needed. GC for my mom

[rsh431]

How is switching non-immigrant statuses a change in intent?

Hmm.. from what I know it is OK to have H-1 with "intent" of immigration
(but not F-1). Most people who switch to H-1 apply for GC within 6
months of getting H-1, if not right away. So one can establish that
the change of intent did happen while getting H-1.

In short, somewhere down the road in the the whole string of events
from getting F-1 to GC, change of "intent" happens. May be one can argue
that it is a good length of time over which change of intent happens and
hence it is OK.. but if it happens for most (statistically), it does not make
sense to reject someone else's F-1 on having an intent originally.. that too
based on the "psychic" capabilities of the person interviewing the candidate..

 

[pianoplayer]

I respectfully disagree. The very first reason we come to this forum is because we are not experts in these matters. We share our research, personal experiences with others so that we can learn from each other, not to make same mistakes as other may already made. Yes, I admit I may not conduct my research as comprehensively as you did, but that should not keep me quiet. Jenimmi gave all the options OP have, one of the options may be in the gray area, even you yourself said depend on the jurisdiction, it could affect the determination. Then no way it should be treated as ILLEGAL advice (with all the capital letters). It's all up to OP to determine what's best for him/her, or consult those options with his/her lawyer if he/she chose to get one. If I was OP, I will definitely want to explore all the possibilities. Even if there is some info may not be 100% accurate, but if you don’t speak out, how would you find out? Of course, you can always go to the lawyers, but that will lose the point why we are here in this forum to DIY, right?

Anyway, I have to say you did much better research, I am learning something new everyday from this forum. Today, thanks to Jenimmi who didn’t keep quiet, otherwise, how do we know what we don’t know?

While anyone is free to explore "gray areas", these are best handled by attorneys. If your case is not cookie-cutter and you are going into "murky waters", it is best explored with an attorney in a private setting. You may probably like what you hear, but the setting for such counseling is very different. A public forum has no business in offering advice about gray areas, without knowing all the legal ramifications.

The thing that is most interesting to me, is that the people involved did not even mention it as a gray area, instead regarded it as totally accepted practice. What is done often, is not necessarily right.

 

[pianoplayer]

Hmm.. from what I know it is OK to have H-1 with "intent" of immigration
(but not F-1). Most people who switch to H-1 apply for GC within 6
months of getting H-1, if not right away. So one can establish that
the change of intent did happen while getting H-1.

In short, somewhere down the road in the the whole string of events
from getting F-1 to GC, change of "intent" happens. May be one can argue
that it is a good length of time over which change of intent happens and
hence it is OK.. but if it happens for most (statistically), it does not make
sense to reject someone else's F-1 on having an intent originally.. that too
based on the "psychic" capabilities of the person interviewing the candidate..

I do not think that you really understand the issue of intent. USCIS, when dealing with change of status/adjustment of status wants to know the following:

1. What your intent was when you applied for a visa.
2. What your intent was at the point of entry.

Notice that that is very different from requiring you to never CHANGE INTENT. People do that all the time - that is why there is such a process of change of status.

USCIS likes to see reasonable evidence that when you entered on a particular visa, that you intended to maintain that status at that time, i.e entering on a B visa you intended to be a tourist, F you intended to be a student.

Granted, this is not a black and white field -- sometimes it is really difficult to determine original intent etc., hence the subject of interesting case law and precedents.

However, using reason, it is not that hard to distinguish some cases from others. E.g. an F1 student who lived in the country 4 years and then married a US citizen. One can reasonably assume the intent was to be a student originally, he/she met a US citizen who they fell in love with and so a change of intent occurs -- completely LEGITIMATE.

How about someone who enters on a B visa as a tourist and then marries a US citizen 5 days later, wanting to change status. This looks a lot more suspicious - it seems as if they had original immigrant intent. Now it is not impossible for this scenario to be legitimate, but it is much harder to prove. It all depends on the facts of the case. There are many B tourists who have met someone and married and have been succesful, but their critical facts may be different, i.e. they married after 3 months rather than 5 days etc. etc. Determinations are made on a case by case basis.

Of course it is possible to circumvent this -- there are ALL SORTS OF WAYS. And some attorneys will use them(at risk to being disbarred). And it works often -- USCIS does not seem to consistently reject such cases(even though it does happen quite often) and often it depends on the individual DAO.

This does not mean that circumvention of the law should be advocated, especially not on a public forum -- that is what our debate above is about.

But in terms of your question, the issue is not so much a change of intent -- rather a determination of what the original intent was and whether it is in accordance with the entry status. Is there a bit of "psychic element" involved? Granted, I would not deny that gut feel plays a role, but there is also a lot of common sense utilized.

P.S. You are correct about the H visa - it is a dual intent visa and so you can enter while having immigrant intent.

 

[rsh431]

Dude, I understand the issue of intent. I said in my first mail that I
am not advocating it one way or other. As I stated earlier that one may
argue based it on "length of time". But then this is exactly like answering the
question "when life begins" and I have no interest in arguing that one way
or the other . One could give "love at first sight" argument too.. for
instance they fell in love with the redwood forests in CA the first time they
landed here and hence decided to stay in this country .

As per the "common sense" part of it, it is a very "common knowledge"
that 90% of the students who enter this country from India end up
working and living here. So either the the guy interviewing does not have
common sense to give visas to majority or he is being unfair to a few.
That is all I was trying to piont out. Peace!

I do not think that you really understand the issue of intent. USCIS, when dealing with change of status/adjustment of status wants to know the following:

1. What your intent was when you applied for a visa.
2. What your intent was at the point of entry.

Notice that that is very different from requiring you to never CHANGE INTENT. People do that all the time - that is why there is such a process of change of status.

USCIS likes to see reasonable evidence that when you entered on a particular visa, that you intended to maintain that status at that time, i.e entering on a B visa you intended to be a tourist, F you intended to be a student.

Granted, this is not a black and white field -- sometimes it is really difficult to determine original intent etc., hence the subject of interesting case law and precedents.

However, using reason, it is not that hard to distinguish some cases from others. E.g. an F1 student who lived in the country 4 years and then married a US citizen. One can reasonably assume the intent was to be a student originally, he/she met a US citizen who they fell in love with and so a change of intent occurs -- completely LEGITIMATE.

How about someone who enters on a B visa as a tourist and then marries a US citizen 5 days later, wanting to change status. This looks a lot more suspicious - it seems as if they had original immigrant intent. Now it is not impossible for this scenario to be legitimate, but it is much harder to prove. It all depends on the facts of the case. There are many B tourists who have met someone and married and have been succesful, but their critical facts may be different, i.e. they married after 3 months rather than 5 days etc. etc. Determinations are made on a case by case basis.

Of course it is possible to circumvent this -- there are ALL SORTS OF WAYS. And some attorneys will use them(at risk to being disbarred). And it works often -- USCIS does not seem to consistently reject such cases(even though it does happen quite often) and often it depends on the individual DAO.

This does not mean that circumvention of the law should be advocated, especially not on a public forum -- that is what our debate above is about.

But in terms of your question, the issue is not so much a change of intent -- rather a determination of what the original intent was and whether it is in accordance with the entry status. Is there a bit of "psychic element" involved? Granted, I would not deny that gut feel plays a role, but there is also a lot of common sense utilized.

P.S. You are correct about the H visa - it is a dual intent visa and so you can enter while having immigrant intent.

 

[pianoplayer]

Dude, I understand the issue of intent. I said in my first mail that I
am not advocating it one way or other. As I stated earlier that one may
argue based it on "length of time". But then this is exactly like answering the
question "when life begins" and I have no interest in arguing that one way
or the other . One could give "love at first sight" argument too.. for
instance they fell in love with the redwood forests in CA the first time they
landed here and hence decided to stay in this country .

As per the "common sense" part of it, it is a very "common knowledge"
that 90% of the students who enter this country from India end up
working and living here. So either the the guy interviewing does not have
common sense to give visas to majority or he is being unfair to a few.
That is all I was trying to piont out. Peace!

Your examples are fairly extreme -- if cases were all that "extreme", it would not be that hard to predict the outcome or adjudicate them. The fact patterns are usually more complicated though than "love at first sight with the redwood trees".

I also do not understand what bone you have to pick with students who decide to stay --- when they arrived, they came for studying and that is what they did. Did they hope to stay perhaps? Yes, but that is not the same as intent to stay. An intent to stay means that that is your primary purpose.
The student analogy you use is not a valid one and has nothing to do with the OP's situation and the resulting argument.

If you were to take a law school course on immigration law, you would explore the issue of intent much further --- you would discover that it is more intricate than what you think it is now. Perhaps you should consider it.

And that's all the advice I have for you today....DUDE.