Legal Authority Supporting Adjustment of Status (AOS)
As many people know, a B1/B2 visitor visa is not a dual intent visa. You should only have the intent to stay as a visitor and not to immigrate, however 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 AOS.
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.
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 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 A?217(b). 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.
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.
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 of 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.
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. It 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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