I am an LPR for more than 10 years, but I have worked abroad for past years and maintained my LPR status. I married my girlfriend this June and now I am going to the US in order to pursue graduate studies. My wife holds a valid b1/b2 visa that was used once a year ago to attend a conference and return back shortly. As there is no visa available for her to accompany me during my studies we want her to come to the US for vacation and then in case my studies are confirmed - file for AOS once she's there (the F2A category status is current). The issue is the risk of being accused of having immigration intent at the time of entering the country on a b1/b2 and later having problems with AOS. Please comment on the risks and provide any advice that could help. Thanks!
Based on the fact pattern that you provide it is pretty clear that there is immigrant intent and there are significant risks if you do this. I would advise you not to. I don't think any immigration lawyer can ethically advise you to have her enter the US on a B-2 with the intention to file for adjustment of status shortly thereafter. First there are preconceived intent and fraud issues which could lead to her having to apply for a waiver under Section 212(i) of the Immigration and Nationality Act. In order to get this waiver you would have to prove that her absence from the United States would be an extreme hardship to you. That is a very high burden of proof to meet. I suggest you consult with a lawyer and discuss your options. The F2A category likely won't be current for a long period of time. It may not be current in September.
I agree with my colleague that there appears to be clear immigrant intent. This can lead to serious consequences including a finding she is inadmissible for fraud and/or material misrepresentation. This is a permanent bar and can only be waived by demonstrating you will endure extreme hardship if she is not allowed to remain in the United States. I would add that the extreme hardship inquiry looks at the hardship you would face living apart from one another as well as if you were required to live abroad with her. As you have been out of the U.S. for the past several years, this may be difficult for you to substantiate. You should consult an experienced immigration attorney to determine what other options may be available for your wife.
Wendy R. Barlow, Esq, The Law Offices of Grinberg & Segal, P.L.L.C., 111 Broadway, Suite 1306, New York NY 10006, (866) 456-8654, firstname.lastname@example.org, www.myattorneyusa.com. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this answer, clients or otherwise, should act or refrain from acting on the basis of any content included in the answer without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a licensed attorney. Provision of information on this website does not create an attorney-client relationship between you and The Law Offices of Grinberg & Segal, P.L.L.C., nor is it intended to do so.
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You have not provided sufficient information to allay attorneys' fears that your LPR status would not be revoked upon returning to the U.S. In addition, it is unlikely that any attorney would suggest that you she should come to the U.S. on a non-immigrant visa and adjust status upon arrival. While some people get through with it, there is the strong possibility of extremely negative consequences if you she commits to such a course of action.
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