By: Attys. Robert L. Reeves and Love Macione
Q. I entered the United States one month ago as a visitor. At the airport I said that I was coming to visit friends. My U.S. citizen boyfriend proposed to me the night I arrived. Is it OK to get married and file for my green card right away?
Q. My USC wife and I got married in the U.S. last year during a visit, but I had to go Back to the Philippines in order to close my business. I just reentered the U.S. using my visitor visa. Can I now apply for my green card here in the U.S.?
Q. I just entered the U.S. as a visitor three weeks ago. Now I think I want to either get a student visa or a specialty worker visa (H-1B). Should I apply right away?
A. One’s intention at the time of entry to the United States is often an issue that arises when an individual seeks to adjust status to permanent resident or obtain a different type of visa. There are two main types of visas, immigrant and nonimmigrant. Under Section 214(b) of the Immigration and Naturalization Act, there is a legal presumption that all persons seeking entry are immigrants, with few exceptions. Nonimmigrant visas, such as visitor visas, take much less time to obtain if the consular officer is convinced that an individual seeks to remain in the U.S. only temporarily. For this reason, the U.S. government pays close attention when a person who entered as a nonimmigrant attempts to obtain a green card soon after his or her entry. If it is found that one has used visa for a purpose other than the one intended, a person will be deemed inadmissible to the U.S.
In the first scenario described above, filing an application for adjustment of status days after your entry will raise the presumption that you were intending to immigrate all along. Although the regulations do not specifically give a “safe” time to apply, filing within 60 days after entry will probably be a problem unless a very good reason for doing so is presented. An individual in this situation may wish to wait to file to avoid raising the presumption.
Entering the United States on a visitor’s visa with the intention of permanently reuniting with one’s wife will be considered visa fraud. If this fact pattern is presented to an officer during the adjustment of status interview, the applicant will almost certainly be found inadmissible for fraud and will be required to apply for a waiver of inadmissibility. However, if he intended only to visit and then to return to the Philippines to consular process, but later changed his mind, there is no intent issue.
Preconceived intent is also a concern for those who enter on one type of nonimmigrant visa with the true intention of pursuing another purpose. In the third scenario described above, a visitor for pleasure actually wishes to work or pursue studies. Although visitor visas are sometimes issued in order for one to visit schools, generally it is an abuse of a visitor visa, when one claims to be coming as a tourist, to come to the U.S. to look for a job or to enroll in school. Denials of such requests for change of status made within 60 days of entry have been upheld by the courts because of the preconceived intent issue.
Although one’s intent is truly only known to the individual himself, the timing of filings and answers to what appear to be innocuous questions by the consular or other immigration officials may prove fatal to one’s plans in the U.S. It is imperative that anyone who entered on a nonimmigrant visa discuss one’s long- and short-term plans with a knowledgeable immigration attorney before attempting to change, extend, or adjust status in the U.S.