Adjustment of Status for Immediate Relatives on B1/B2 Visitor Visas

by Hasan Abdullah, Esq.

I entered the country on a B1/B2 visitor visa, can I safely adjust status? This is a very common question, and a source of a lot of confusion, even amongst immigration practitioners, USCIS officers, and Consular Officers (AKA ConOffs). The answer, like most things in immigration, is "maybe."

As many people know, a B1/B2 visitor visa is not a dual intent visa. In other words, you should only have the intent to stay as a visitor and not to immigrate when you get the visa. If a ConOff interviewing you for the visa asks you whether you have intent to immigrate or if you have a US Citizen fiancé in the US, etc, and you say that you do have a fiancé and intend to get married and immigrate, you will not get the visa.

With the above considerations in mind, it is important to also understand the issues of preconceived intent (PCI) and fraud. The basic guideline is that PCI is not an inadmissibility bar, but fraudulent misrepresentation (INA 212(a)(6)(C)(i)) is. So even if you had, in your heart, preconceived intent, if you were never questioned about it, and you never stated anything untrue to a ConOff or Port of Entry Officer, nor made any misstatements in your DS (department of state) forms when they were filled, then you are legally good to adjust status.

Legal Authority Supporting Adjustment of Status

Again, preconceived intent in and of itself is not a problem for immediate relative adjustments. Specifically, the adverse factor of preconceived intent is overcome by the "substantial (or significant) equities" present in immediate relative adjustments. This legal authority stems form Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980). "Substantial equities" is further clarified in Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981).

As for the issue of fraudulent misrepresentation, the key concept is that silence, or failure to volunteer information, is not a misrepresentation. This concept is further confirmed by 9 FAM 40.63 and Matter of Tijam.

So to recap, PCI and fraudulent misrepresentation are two separate issues. The precedents of Cavazos and Ibrahim make it clear that PCI by itself is not an issue for immediate relative adjustment of status cases. Silence before a ConOff or Port of Entry Officer is not a misrepresentation.

What About the 30/60 Day Rule?

The famous "30/60 day rule" can be found in 9 FAM 40.63 N4.7. In a nutshell, the rule states that in the event that a B-2 visitor informs an immigration officer that his or her visit is for tourism, and the visitor violates this status by doing something contrary to B-2 conditions (eg. get married and take up permanent residence), there will be a presumption of fraudulent misrepresentation if the violation happened within 30 days of admission, or there will be rebuttable presumption that if the violation happened within 60 days of admission.

It is important to note, however, that the "30/60 day rule" is not a substantive rule. It is merely a procedural rule as to when and how a consular determination of inadmissibility under 212(a)(6)(C) is to be reviewed by the Advisory Opinion Office in Washington DC (which no longer happens). Previously (several years ago) all 212(a)(6)(C) determinations had to be sent to the Administrative Office.

So today, the 30/60 day rule is meaningless in the adjustment of status context. However, USCIS still misapplies the 30/60 day rule, while immigration attorneys over rely on it. CIS uses it inappropriately as a sword on a bright line test, while attorneys misuse it as shield thinking they are always safe after 60 days.

What about Adjustment of Status for Immediate Relatives on the Visa Waiver Program VWP?

If you entered on the VWP, you may be eligible to adjust just the same as a B1/B2 visitor, subject to the same rules and limitations discussed previously, but there is a caveat.

VWP entrants agree to a "no-contest clause," to wit, to waive any rights to review or appeal an immigration officer's admissibility determination and to waive the right to contest any action for removal except on the basis of an asylum application. INA §217(b). What this means is that you can be subject to removal if you violate terms of your VWP admission, and do not have the opportunity to contest the removal. The affect of this no-contest clause depends on whether you are in the 9th Circuit.

If you are in the 9th circuit, the case precedent of Freeman v. Gonzales, 444 F.3d 1031 (9th Cir.2006), provides immediate relative beneficiary VWP entrants protection from removal for overstay after filing for adjustment of status.

However, Momeni v. Chertoff, 521 F.3d 1095, (9th Cir.2008), states that the right to protection from removal for VWP entrants is limited to situations where the applicant files for adjustment of status while their stay is authorized. Momeni states:

Note that the rationale in Freeman was not adopted in other Circuits, however. Thus, VWP entrants may only apply for adjustment of status if they do so while their stay is authorized.

So to summarize, in the 9th Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, it is safe for VWP entrants in authorized stay to apply for adjustment of status. If you are not in the 9th Circuit, and you attempt to adjust status as a VWP entrant, you may potentially be removed under a 217 order from the District Director without hearing before an Immigration Judge (unless if you have an asylum claim).

What about Adjustment of Status for Immediate Relatives on C-1 Transit Visas?

C-1 visas are issued to both crewmen and aliens in transit. If you were employed in a vessel or aircraft and designated to join such vessel or aircraft (you may have a C/D notation on your visa passport), you are not eligible to adjust, and have to have your sponsor file a green card petition for you under consular processing. You would then apply for the green card visa in your home country.

On the other hand, if you were a C-1 not working on or intending to join a vessel or aircraft, but were only in transit through the United States, you may be eligible to adjust just the same as a B1/B2 visitor, subject to the same rules and limitations discussed previously.

Conclusion

Some immigration officers may not be trained to recognize that preconceived intent by itself is not a ground of inadmissibility, and that's were a good immigration attorney can help. If you end up in front of an immigration officer that does not understand the distinctions described in this article, an attorney can be armed with the necessary case law and regulation citations to educate them to make the right decision and approve the adjustment of status.

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About The Author

Hasan Abdullah, Esq. was born in Toronto, Canada, and has been living in the United States for over 10 years. As a foreign national, he has had to deal with the US immigration service on many occasions, so he understands what clients are going through based on personal experience. His initial professional experience in immigration law was gained in 2005 as a student intern at the Alexander Law Center, which is administered by Santa Clara University. As an intern he focused on family-based immigration, VAWA petitions, political asylum, and criminal victim (U-Visa) cases. While working at the law center, he also developing guidance manuals on VAWA petitions and criminal victim visas. Prior to joining the Shah Peerally Law Group, he worked at an immigration law firm where he developed proficiency in employment-based immigration. Since joining the Shah Peerally Law Group in June 2008, Attorney Hasan Abdullah has been serving clients in a diverse range of areas in immigration and naturalization law, with substantial focus on H-1B and L-1A /L-1B petitions, and PERM Labor Certifications underlying professional/skilled worker immigrant petitions.


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