Memphis immigration lawyer Ari Sauer provides news and information on US immigration law.
QUESTION: I have a B1/B2 visitor visa that was issued to me many years ago. My mother filed an I-130 petition for me a while ago and the priority date for it has almost been reached on the Visa Bulletin. I recently received the letter from the NVC telling me I can begin processing my immigrant visa application. Can I come to the US on my visitor visa and apply for a green card in the US based on the petition my mother filed for me?
THE IMMIGRATION ANSWER MAN – ARI SAUER: You should not come to the US using your visitor (B-1/B-2) visa in order to apply for Adjustment of Status in the US to become a US Permanent Resident (green card holder). A visitor visa is to be obtained and used for entry into the US only by someone who has “nonimmigrant intent”, meaning they intend to stay only for the authorized period of admission and then they intend to leave the US (this also applies to certain other nonimmigrant visas, such as a F-1 student visa). Alternatively, someone who enters the US with the intention of remaining and living in the US has “immigrant intent” (also known as “preconceived intent”). A foreign national who has immigrant intent / preconceived intent at the time they apply for a visitor visa, or at the time they use the visitor visa to come into the US, is committing visa fraud and will make themselves ineligible (inadmissible) for most immigration benefits, including applying for Adjustment of Status (Form I-485), under the Immigration and Nationality Act (INA) Section 212(a)(9)(C).
INA 212(a)(9)(C)(i) states that “any alien who, by fraud or willfully misrepresenting a fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.” A waiver for this ground of inadmissibility requires that the foreign national have a US citizen or US Permanent Resident spouse or parent, and requires convincing USCIS that if the waiver is not granted that it will cause “extreme hardship” to that spouse or parent. However, even where the foreign national has a spouse or parent who is a US citizen or US Permanent Resident, I would highly recommend against coming to the US using a visitor visa with immigrant intent, both because it is illegal and because the standard for showing that the spouse or parent will suffer “extreme hardship” is high, and so there is no guarantee that USCIS will grant the waiver of the 212(a)(9)(C)(i) bar of inadmissibility.
Where someone legitimately had nonimmigrant intent at the time they entered the US (meaning that they truly intended to stay for the authorized period of stay and then leave the US), but something happened AFTER they entered the US to cause them to stay and apply for Adjustment of Status, that person should not be subject to a bar of inadmissibility under 212(a)(9)(C)(i) due to “preconceived intent”. However, when they apply for Adjustment of Status, the foreign national will have the burden to prove to USCIS that they did not have immigrant intent/preconceived intent when they entered the US. USCIS should look at the actions of the foreign national after they came into the US to determine whether the foreign national actually intended to leave the US, or whether they came intending to stay. USCIS should pay special attention to the actions of the foreign national that would tend to indicate that they planned to remain in the US where they occurred during the foreign nationals first 30 days in the US, and where they occurred between their first 30 days and their first 60 days in the US. This is commonly known as the “30-60 day rule”. However, USCIS is still also allowed to consider the foreign national’s action that occurred after 90 days as well, so the 30-60 day rule should be considered as more of a guidelines than a rule that the foreign national can rely on.
A potential exception to being subject to the 212(a)(9)(C)(i) bar for fraud or misrepresentation for having entered the US with immigrant intent / preconceived intent, for someone who has already entered the US, is if the foreign national is applying for Adjustment of Status (Form I-485) based upon an I-130 immigrant petition that qualifies under the “Immediate Relative” category. The Immediate Relative category includes spouses of US citizens, parents of US citizens, and children of US citizens who are under the age of 21 (If you are waiting for a visa to become available for your petition’s priority date in the DOS Visa Bulletin, then your I-130 falls under one of the “preference categories” and is not under the Immediate Relative category). Under the Board of Immigration Appeal (BIA) cases of Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980); Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1980); and Matter of Battista, 19 I&N Dec. 484 (BIA 1987) where a foreign national applying for Adjustment of Status is a) applying as an Immediate Relative; and b) is otherwise eligible to be granted permanent residence; and c) the only issue is that the foreign national had immigrant intent/preconceived intent at the time they entered the US; and d) the foreign national did not commit any actual fraud (such as lying or using a false document) when applying for the visa or when entering the US; then the USCIS adjudicating officer should use their discretion and approve the Application for Adjustment of Status despite the fact that the foreign national had immigrant intent / preconceived intent when they entered the US. However, even for someone who would qualify as an Immediate Relative, I warn against coming to the US on a visitor visa with the intention to remain and live in the US as a) the act of entering the US with immigrant intent / preconceived intent is still an illegal act; b) when you enter the US you might find yourself lying to the inspecting officer during the inspection process, even if you did not plan to; and c) despite the case law, it is not guaranteed that the USCIS adjudicating officer will use their discretion to approve the I-485 application in this situation.
By Ari Sauer.