I came to the US on a visa waiver tourist visa so that I could take care of my wife' s family member who is not doing well. My wife could could not come because of her job (we both live and work abroad). After 2 weeks my wife decided to come (her job gave her time off to visit family). After 2 weeks my wife asked me to stay, right before leaving the US. Upon learning that I could adjust status in the US we gathered the documents and I filed the AOS on the 40th day after my arrival. But my wife came to the US 14 days after me, meaning that I filed for the AOS when she was here only 24 days. Will it be a problem that she was in the US for less than 30 days when I filed?
No one will bother to ask or inquire when it was that your wife, a USC reentered the country.
The problem in your case with your AOS filing is that you filed for AOS a mere 40 days after being admitted. Any application for change of status filed in between zero and 30 days from admission is presumed to be "visa fraud" by operation of law. From 31 to 59 days after admission, it becomes a "rebuttable" presumption. The burden of rebutting the presumption of visa fraud and "preconceived intent" is on the foreign national ( you) to rebut. It is a heavy presumption to be able to successfully refute.. After 60 days all such presumptions are lifted.
Do not despair: you are in the most "liberal" USCIS jurisdiction in the entire USA, and chances are USCIS is not going to raise the "visa fraud" or "preconceived intent" issue during the interview. Let's wait and see and hope for the best. I hope you'll have a competent immigration attorney to represent you.
Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.
The interviewing officer will more than likely address this issue in the interview. You should seek advice from an immigration attorney. The following article might help you better understand your situation:
- Jeremy L. Richards, Esq. Attorney at Law & Partner - Offices if Buffalo, NY and Batavia, NY - Free Case Assessment Office: (800) 459-0270 - Fax: (866) 941-6703 - Email: email@example.com - Website: www.richardskruger.com - The statement above is general in nature and does not constitute legal advice. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship.
You will definitely be questioned about your intentions in coming to the US during your interview. The officer must be convinced that you entered the US with no intnet to remain permanently.
Please click the link below for additional information.
Carl Shusterman, Esq.
Former INS Trial Attorney (1976-82)
Board Certified Immigration Attorney (1986 - Present)
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600 Wilshire Blvd., Suite 1550
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(213) 394-4554 x0
Web: www.shusterman.com (English)
(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.
I am assuming your wife is a USC and you were otherwise eligible to file AOS. Was I-130 filed concurrently or previously approved? I'd say you will need an attorney to represent you at the interview as you will most likely be grilled regarding your intentions at the time of entry.
This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. If you would like additional information based on this response, please contact my office at 510 657 7665 or 415 902 0832 to schedule a consultation.