GRANTING LAWFUL PERMANENT RESIDENCE IS DISCRETIONARY NOT MANDATORY
If a person enters the United States in certain nonimmigrant (temporary) visa categories with the obvious intention of applying for immigrant (permanent) status, their adjustment of status (AOS) application can be denied by the USCIS in the exercise of discretion. The nonimmigrant visa categories that can never intend to acquire permanent status are B-1/B-2 Visitors, F-1 Students, J-1 Exchange Visitors, Q Cultural Exchange Visitors, TN Visitors or Visa Waiver Visitors.
Applicants for AOS must not only prove to the USCIS that they have been "in status" at all times that they have been in the United States since 1987, but also that they have not acted in bad faith for their latest entry. The USCIS has adopted the "30/60 Rule" used by the Dept. of State's Foreign Affairs Manual (9 FAM 40.63 n4) when examining events that occur shortly after entry.
IT IS BAD FAITH TO TRY TO CHANGE YOUR VISA CATEGORY DURING FIRST 60 DAYS IN THE U.S.
For example, if a person applies for admission into a school or for a change in nonimmigrant or immigrant status within 30 days of entry as a tourist, they are presumed to have acted in bad faith. According to INA 214(b), every foreign national who files paperwork to change to a different visa category or to stay in the U.S. permanently within the first 30 days after arriving in the U.S. is presumed to be trying to avoid longer procedures. That is, they are assumed to have had the preconceived intent to make the change before they even arrived in the U.S. and therefore they obtained or used one visa in order to evade the normal screening process abroad for the nonimmigrant or immigrant visa they really wanted.
CAN GENERALLY WISH TO REMAIN IN U.S., BUT NOT HAVE A "FIXED INTENT"
If the application for AOS occurs between 31 and 60 days after entry, no presumption of bad faith is made, but there is a strong suspicion that the person may have acted in bad faith. That case will be scrutinized carefully. A foreign national is allowed to have a general desire to remain in the U.S. (Matter of Hosseinpour, 15 I&N Dec.191 (BIA 1975)) but a fixed intent to remain in the U.S. is prohibited (Lauvik v. INS, 910 F.2d 658, at 660 (9th Cir. 1990)).
It is up to any AOS applicant to show they had no preconceived intent to apply for permanent residence, pursuant to INA 214(b), because preconceived intent is a potential basis for discretionary denial of AOS (Von Pervieux v. INS, 572 F.2d 114,118 (3d Cir. 1978)).
IMMEDIATE RELATIVES ARE TREATED DIFFERENTLY
If the AOS application was filed more than 60 days after entry, the presumption is that the applicant acted in good faith. With regard to immediate relatives, preconceived intent is not supposed to be presumed and is not supposed to be the basis for an AOS denial if it is the only adverse factor (Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980), Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981)) Matter of Battista, 19 I&N Dec. 484 (BIA 1987)).
Keep in mind that the USCIS still reserves the right to investigate any AOS case if there is evidence of wrongdoing. If an AOS applicant has anything in his or her past visa history that suggests that he or she may have abused the visa process, or otherwise tried to take shortcuts, the USCIS has made it clear that they can deny such AOS applications in the exercise of discretion.
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