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AOS based on marriage - F1 visa. Need urgent advice

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  • #16
    Apply for the petition to adjust status first. You can think of what to do next in case of a denial.

    I am not a lawyer and you need to consult with one to validate any info posted on the forum and discuss your case specifics. H1b Question? Read the FAQ first.

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    • #17
      Can I apply by myself or I have to do it thru attorney's office? If I apply myself, in case of a denial, is it okay for me to reach the help from an attorney later? Or I have to wait until I find a good attorney then apply the petition to adjust status by his representation ?

      Originally posted by txh1b
      Apply for the petition to adjust status first. You can think of what to do next in case of a denial.

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      • #18
        Hi, I found this :

        """ I have been studying in the United States on an F-1 for several years now. I married a United States citizen. I then left the country and reentered using my F-1 visa, not intending to immigrate at that time (I was not questioned about this by the immigration officer). However, our plans have now changed and I will be applying for permanent residence by way of adjustment of status. How soon after I enter the country can I file my application without running the risk of being accused of fraud, based on my entry as a student? When can I begin gathering the documents supporting my application?

        There is no absolute answer to your question since USCIS does not have any specific guidelines on when the issue of fraud can arise in such cases. However, DOS has developed a fraud rule that they apply at United States consulates. While DOS guidance is not necessarily binding on USCIS, it carries some weight and USCIS officers tend to follow it. So let's start with that.

        Here are the relevant notes from 9 FAM §40.63 of the Foreign Affairs Manual ("FAM"):

        N4.7-2--Within 30-Days (TL:VISA-313; 08-27-2001)

        If an alien violates his or her nonimmigrant status by adjusting status or by seeking unauthorized employment within 30 days of entry, the consular officer may presume that the applicant misrepresented his or her intention in seeking a visa or entry.

        N4.7-3--After 30 days But Within 60 (TL:VISA-313; 08-27-2001)

        If an alien initiates such violation of status more than 30 days but less than 60 days after entry into the United States, no presumption of misrepresentation arises. However, if the facts in the case give the consular officer reasonable belief that the alien misrepresented his or her intent, then the consular officer must give the alien the opportunity to present countervailing evidence. If the officer does not find such evidence to be persuasive, then the consular officer must submit a comprehensive report to the Department (CA/VO/L/A) for the rendering of an advisory opinion.

        N4.7-4--After 60 Days (TL:VISA-313; 08-27-2001)

        When violative conduct occurs more than 60 days after entry into the United States, the Department does not consider such conduct to constitute a basis for an INA 212(a)(6)(C)(i) ineligibility.

        To summarize, the 30/60 fraud rule says that if you seek adjustment of status within 30 days of your entry, you will be presumed to have committed fraud and must provide evidence to rebut this presumption. If you seek adjustment after 30 days but within 60 days of your entry, there is no presumption but they can still accuse you of fraud. If you seek adjustment after 60 days, it would not be an issue.

        So if the USCIS adopts a similar rule, my advice to you is to wait at least 60 days after your entry before you file your application for adjustment of status. There should be nothing wrong with gathering documentation in advance as long as you do not file the actual paperwork until at least 60 days have passed. If you really have to file before 60 days have passed (I don't recommend it), at the very least, I would wait until 30 days have passed. At least this will avoid the presumption of fraud.

        I should also mention that adjustment of status is considered a privilege, not a right. It can still be denied if USCIS determines that negative factors exist, including preconceived intent to be an immigrant at the time of entry as a nonimmigrant. So if USCIS believes that you had preconceived intent to be an immigrant at the time of entry, even if you did not actually commit fraud, they can still deny your adjustment of status application as a matter of discretion.

        Fortunately, as a result of Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980) immediate relatives are exempted from this potential problem. 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. So in your situation, your adjustment of status application should not be denied on the basis of preconceived intent. """

        My question is: is it possible for my case to get accepted based on the Matter of Cavazos ? Did anyone have it before ? Please share. Thanks.

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        • #19
          Intent may not be the problem in your case based on what you provided as you did not file for AOS barring the 30/60/90 day rule. Misrepresentation on the visa application as single when married is the problem.

          I am not a lawyer and you need to consult with one to validate any info posted on the forum and discuss your case specifics. H1b Question? Read the FAQ first.

          Comment


          • #20
            If its a misrepresentation, what can I do ? will I have to file for a waiver inside the US or I have to leave and file at the consulate abroad? Based on the overstay, I could be trigger 3 years bar, if I leave, it will be automatically ban ? If it is, what should I do ?

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            • #21
              need help in understanding the process

              my husband overstayed in US, he returned back to India - no deportation, no criminal charges.
              applied at US consulate again with separate set of documents - Us consulate barred reentry for overstay and misrepresentation of documents

              is there a way he can come back to US if filed for waiver?
              if yes what is the procedure? and how long does it take?
              I also read of extreme hardship - is this required to gain admission?
              any idea on how much this will cost me?

              I am a legal permanent resident - does this help in filing for waiver?

              Thanks in advance.

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              • #22
                Hi guys !
                I have question , do u have show to the interview i20 from school that u don't went and did not study there at all.

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