Visitor Visa and AOS

arun_parv said:
So, why make a law that you do not even have the power to enforce?
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What on earth are you talking about?

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
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Sure, which is why relatives get B visas rejected all the time.

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.
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There's no law. So here's a suggestion. Why don't your parents file the I-485 a week after entering in B status and let us know how well that works out? Heck, I'm just some guy on an internet message board (like tdas63) so I can provide all sorts of suggestion. The only ones who would suffer any consequences would be your parents.

But if you're so sure that there's no 30/60/90 day rules and any non-immigrant can adjust status at any time, why don't they get a head start on the I-485 and file it right after entry? Sound like a good idea?

In fact I am going to call the USCIS one of these days and ask them about this.
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Call them several times - you'll get several answers. None are guaranteed to be correct.
 
tdas63 said:
an archaic ruling (30 years old) thats intended for state department
and was meant for consular processing.
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Seihoon v. Levy has no such restrictions on who it was intended for, or what process. In fact, it was based on an appeal of an INS proceeding, not a State Department effort (since those are not subject to judicial review).

If you actually understood the topic at hand you would have known that.
 
TheRealCanadian said:
Sure, which is why relatives get B visas rejected all the time.
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I know I've had this argument with you guys over this issue in the past but still let me buzz in as well....
Is this the only reason that relatives B visas get rejected?
Do you have any evidence to prove that the interviewing officer at the consulate specifically told the applicant that their visa is being rejected because their fellow countrymen have been AOS'ing once in US?
If this were true would it not have made sense for State Department to actually just impose blanket ban on B visas to that particular country?

TheRealCanadian said:
Call them several times - you'll get several answers. None are guaranteed to be correct.
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Since facts have not been clearly established then why argue?
 
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"What on earth are you talking about?"
Obviously something beyond your comprehension and beyond my ability to explain to you so I won't even bother trying

"Sure, which is why relatives get B visas rejected all the time."
Why stop at that, find more things to blame.. after all you are a "volunteer moderator" whatever that means. Your responses are more akin to a provocateur than a moderator

"There's no law. So here's a suggestion. Why don't your parents file the I-485 a week after entering in B status and let us know how well that works out? Heck, I'm just some guy on an internet message board (like tdas63) so I can provide all sorts of suggestion. The only ones who would suffer any consequences would be your parents."

You don't have to worry about my parents suffering consequences they are well taken care of.


"Call them several times - you'll get several answers. None are guaranteed to be correct. "

But of course... only you have the right answers everyone else is a law breaking moron out to ensure that people don't get B visas to the United States

You seem very bitter...enough for me to not let you get under my skin and never monitor this thread again.
Good luck with your B visa trials and tribulations!
 
The consul would label such a rejection as 214(b).
You may call me Darth Vader if you so desire.

Vik Pal said:
Do you have any evidence to prove that the interviewing officer at the consulate specifically told the applicant that their visa is being rejected because their fellow countrymen have been AOS'ing once in US?
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Triple Citizen said:
The consul would label such a rejection as 214(b).
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Below is the text of 214(b)

http://travel.state.gov/visa/laws/telegrams/telegrams_2173.html

Can you read this and explain where the scenario under discussion in this thread mentioned in the text?

Besides B visas there are others too (E, F, J, M, O-2, P, Q, and TN) which fall under same category.

If you read the guideline it is clear that it is very easy to stamp 214(b) rejection but does that happen only because B visa holders are filing AOS in US? You may be right that this may be one of the reasons that may lead to suspicion in minds of the officer that the current applicant may do the same but there is no written rule and mostly 214(b) is very general and discretionary. The officer, due to enormous experience, may infer the same just by looking at the body language of the candidate.

Also, we would like to know in which country are all these so claimed B visa rejections taking place? has anybody looked at visa stats and noticed any precipitous decline in B visas issued in a specific country or at a particular post?
 
Correct. The mere suspicion of an applicant not returning is enough for the 214(b) to be applied.

Vik Pal said:
You may be right that this may be one of the reasons that may lead to suspicion in minds of the officer that the current applicant may do the same
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Correct again. There is no such language mentioning countries whose nationals AOS from B-2 visas should be automatically rejected.

Vik Pal said:
but there is no written rule and mostly 214(b) is very general and discretionary.
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Islamabad is one example. The percentage of refused B-2 applications has risen steadily from the 70s onwards. As more and more Pakistanis moved to the US and naturalised, cases of their parents AOSing from B-2 visas also rose. Such information is tabulated and shared between the various departments in order for appropriate action to be taken. How do I personally know that? Hear me out. In the mid 90s I was living in Kuwait and part of the diplomatic corps there. One of my good friends was then posted as the vice-consul in the US Embassy. According to him, the INS (back then) used to tabulate the following:-
(1) B-2 holders who disappeared
(2) B-2 holders who AOSed
(3) B-2 holders who EOSed
(4) B-2 holders who COSed
(5) Other irregularities for other visa statuses

These tables were sent to all US embassies for review. Unofficially such applicants were called "Jumpers". Embassies (and specifically consuls) who approved these applicants were singled out for demerit points. The more demerits you collected, the more incompetent you looked. My friend did not bat an eyelid when approving B-2 visas for Kuwaiti citizens. This was pre-911 and background checks for all male Arabs was nonexistent. However my friend went through DS-156s filed by Indians and Pakistani with a fine comb. He did this to ensure he does not the next "jumper" in. It is much tougher now. Consuls don't want to let the next "jumper" and the next "Atta" in. So they have to double their due diligance skills. It is not an easy job. So with each passing year, consuls trained themselves to consider certain nationalities "more guilty than others". This was primarily done to make themselves look more competent in doing what they were hired to do. This was a dual carriageway mind you. The State Department also had an avenue to get back at the Justice Department. Consuls often returned I-797s approved by the INS after interviewing the applicant, citing incompetence on part of the INS by not being able to catch fraud, etc.
This is all verbal. My source of knowledge here is based on personal friendship. It is your decision to believe it or not.



Vik Pal said:
Also, we would like to know in which country are all these so claimed B visa rejections taking place? has anybody looked at visa stats and noticed any precipitous decline in B visas issued in a specific country or at a particular post?
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Triple Citizen said:
It is your decision to believe it or not.
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I believe you!! You may be correct but my point is that if US govt wanted then they could have easily put an end to the practice of "jumping" by simply banning AOS for folks on temp visas like B1/B2. But they allow AOS in the first place and then fret about it. Call it stupidity or a legal loophole. Ordinary people have no clue about it and even legal community does not have clear idea because of absence of any written legal guidelines. In such a situation individuals have to take their own decisions based on their circumstances. There are many people whose parents are elderly and alone to go back home so they have to file AOS. I would not blame them because they have a need, and the law allows them to, so why not? Those who don't have such or other compulsions opt for CP. Thinking about consequences on future B applicants is asking too much from the current crop of individuals. (btw doesn't it apply universally in every area these days that "who cares about what happens down the road"?)
 
30/60/90 day rule usually does not apply to immediate family AOS
Here is the case law, right from the BIA:

Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980)


According to Matter of Cavazos, in the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain.
 
I personally know a case where the BIA decision was not immediately applied. Instead, the citizen spouse had to go through significant trouble and expense and an inadmissibility waiver to get INS to complete the AOS of his wife. Her AOS was filed 60 days after entering on a visitor visa. Entering on B with the intent to AOS is illegal, and it is grounds to ban your parents for life from living in the US or as much as visiting. Whether INS can prove they had immigrant intent is a different question. It seems often they don't succeed with such a proof. However, sometimes they very well do. In the given case the couple moved in together immediately after arriving in the US and the future wife signed a long-term lease before they married and filed for AOS. INS eventually found out, and hence the entire waiver debacle. As you can see, INS might not be very bright (by god they aren't), but they are not entirely stupid either. They see many cases each year and have a pretty good feel for fraud. They might not always be able to prove it, but if they do, you will be in a world of hurt. The alternative is a quick and painless CP process. Why people must insist on breaking the law instead of it will always remain a mystery to me. Good luck. I hope we don't see you return in a few months with a panicked post how to stop your parents deportation.
 
nscagony said:
I personally know a case where the BIA decision was not immediately applied. Instead, the citizen spouse had to go through significant trouble and expense and an inadmissibility waiver to get INS to complete the AOS of his wife. Her AOS was filed 60 days after entering on a visitor visa. Entering on B with the intent to AOS is illegal, and it is grounds to ban your parents for life from living in the US or as much as visiting. Whether INS can prove they had immigrant intent is a different question. It seems often they don't succeed with such a proof. However, sometimes they very well do. In the given case the couple moved in together immediately after arriving in the US and the future wife signed a long-term lease before they married and filed for AOS. INS eventually found out, and hence the entire waiver debacle. As you can see, INS might not be very bright (by god they aren't), but they are not entirely stupid either. They see many cases each year and have a pretty good feel for fraud. They might not always be able to prove it, but if they do, you will be in a world of hurt. The alternative is a quick and painless CP process. Why people must insist on breaking the law instead of it will always remain a mystery to me. Good luck. I hope we don't see you return in a few months with a panicked post how to stop your parents deportation.
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You guys dont get it. the above case stinks to the heaven from the beginning and also its not PARENTS case. So it does not matter 30 or 60 0r 90,...IO can disapprove AOS if he smells a rat. Its not even the case of applying this 30/60/90 ruling that every senior member is going gaga over.
Read again. 30/60/90 is for CP only and yes, there is documented case of applying this for AOS too but those cases were in trouble from the very beginning and INS did not need this archaic but still valid rule to apply
to those cases.
 
tdas63 said:
Read again. 30/60/90 is for CP only
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In Seihoon v. Levy , 408 F. Supp. 1208 (La. 1976), the court upheld the decision to deny an application to change status based on a finding that a rapid sequence of events leading to enrollment in a school is sufficient for a finding that the applicant had a preconceived intent to change nonimmigrant status and circumvent the normal visa issuance process.

Repeating an untruth doesn't make it true, tdas63. Go read the case.
 
I don't understand why people are fixated with 30-60-90 issue. Whether there is such a rule or not why can't people wait 90 days just to be on the safe side? When we have waited so many years to get to the point where we are then what's the harm in waiting another 90 days. Big deal !!!
 
Here is a case in early 2008 that may start having impact on decisons made by USCIS:
http://www.philadelphiaimmigrationlawyerblog.com/2008/04/visa_waiver_overstay_and_adjustment_of_status_momeni_v_chertoff_is_a_problematic_case_out_of_california.html

This case is primarily about person on VWP, but it is informative for the discussion here.

What this case means at least in the 9th Circuit, is that it is riskier for a visa waiver entrant to apply for adjustment after the 90 day alloted stay expires. CIS local offices may interpret this case to apply to visa waiver entrants who overstay their 90 days and then file a green card case (adjustment) whether or not a person is ever placed in removal, leading to a denial of the green card case. It's a catch in a way, because applying for an adjustment right after entry can lead to CIS concluding that the visa waiver entrant committed visa fraud at entry by really intending to move to the US on their visa waiver (which is the equivalent of a visitor's visa), which could result in denial of the adjustment application and eventual removal.
 
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