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For aliens who are interested in applying for a non-immigrant visa, there are instances where the alien will encounter the issue of having to prove his/her non-immigrant intent to the USCIS officer.  Typically, before a non-immigrant visa applicant’s application is approved, a consular officer (at the U.S. Consulate/Embassy abroad where the application was submitted) must first determine whether the non-immigrant actually seeks to enter the U.S. permanently. This precaution is taken because under the Immigration and Nationality Act [INA 214(b), 8 U.S.C. 1184(b)], there is a legal presumption that all persons seeking entry into the United States hope to become permanentresidents. Therefore, in order for the non-immigrant visa application to be adjudicated, the applicant bears the burden of having to prove “non-immigrant intent:” that he/she (1) has a residence abroad, (2) has no immediate intention of abandoning that residence, and (3) intends to depart the U.S. upon the termination of the visa. These guidelines apply to non-immigrant visa categories, such as: B, F, E, J, M, O-2, Q, and TN. However, the Immigration Act of 1990 exempted H-1, L-1, O-1, K, and P visas from having to prove non-immigrant intent.

The issue that arises for non-immigrant visa holders who may want to apply for a Change of Status or Adjustment of Status is that in doing so, it brings into question whether or not the applicant had a “preconceived intent” at the time that they were granted their non-immigrant visa; this is the basis for the 30/60 day rule. According to the Department of State’s Foreign Affairs Manual (9 FAM 40.63, N 4.7), the 30/60-day rule is meant to be used for guidance only, since it is not governed by the statutes or regulations. Thus, it should not be used in a denial. However, as a general rule, a person cannot have preconceived intent to enter the U.S. for a purpose different from that permitted under his/her non-immigrant visa. If an alien files an immigration petition or applies for an adjustment of status within 30 days’ entry into the United States, the USCIS would likelyfind that the alien entered with “fraudulent intent” to remain in the U.S. and the non-immigrant visa would be classified as fraudulently obtained under the laws. If the alien applies for a change of status or adjustment of status after 30 days but before 60 days after entry, the USCIS could view the change or adjustment with an assumption that he/she had a “preconceived intent” to enter as a non-immigrant. However, the assumption may be rebutted by the applicant with evidence showing a change of circumstances.While it is not a guarantee, if the alien applies for the change of status or adjustment status after 60days of entry into the U.S., USCIS may not look upon the application negatively. The best practice regarding non-immigrant visas, however, is to abide by the time restrictions that are allotted on the NIV assigned to the alien. [INA 214]

Immediate Relatives of US Citizens

Provided the information mentioned above, an interesting questions arises that must be examined: do the issues of immigrant/non-immigrant intent relate to the immediate relatives of United States Citizens? Immediate relatives are a U.S. citizen’s parents, spouse, and/or unmarried children under the age of 21.

According to two similar appeals cases,the Matter of Battistaand the Matter of Cavazos,filed with the Board of Immigration Appeals (BIA), immediate relatives of United States citizens who wish to apply for a change of status or adjustment of status are exempt from being subjected to the 30/60 day rule mentioned above; thus, immediate relatives of U.S. citizens do not encounter the issues of presumed/preconceived fraudulence. Within the Matter of Battista(and similarly in the Matter of Cavazos) the alien had entered the United States on January 9, 1978 as a non-immigrant visitor for pleasure (B-2 visa), with the intent to visit his family for a short period of time. However, prior to the alien’s entry into the U.S. on his B-2 visa, his father had already filed an immigrant petition for his son, under the family based immigration first preference category, and received an approval on April 8, 1974. Therefore, the alien applied for an adjustment of status on February 16, 1978. According to the 30/60day rule mentioned above, the immigration judge denied the alien’s application for an adjustment of status on the basis of preconceived intent, citing that the alien had a preconceived intent to remain in the United States permanently.

However, in the alien’s appeal of the decision, it was concluded that since the alien’s parents, wife, and children are U.S. citizens, he had significant family ties. Furthermore, since the alien had immediate relative status from April 8, 1974, when his visa petition was approved, until November 23, 1976 when he reached the age of 21, his status was automatically converted to that of first preference. Thus, in this scenario, the alien had not violated the 30/60day rule and his application for adjustment of status could not be denied on the basis of preconceived intent. For more examples about the immediate relatives’ exception to the 30/60-day rule, please see the scenarios below:

Example 1:

Joe is a 19 year old Singaporean citizen who applied for and received a B-2 visa to come to the United States to visit his U.S. citizen father and younger sisters. When Joe entered the U.S. on February 1, 2012, he had only intended to stay for a short period of time so that he could spend time with his father and celebrate his 50thbirthday. However, on March 15, 2012, Joe decided that he really enjoyed spending time with his family here in the United States; therefore, Joe decided to file for an adjustment of status through family based immigration. Generally, Joe’s application for an adjustment of status would be denied on the bases of preconceived intent because a USCIS officer may assume that Joe entered the United States on the B-2 visa, with the preconceived intent to immigrate to the United States. However, since Joe is the immediate relative of a United States citizen, he has significant family ties within the U.S. Therefore, Joe would be exempt to the 30/60 day rule and his adjustment of status application could not be denied on the basis of preconceived intent.

Example 2:

Jane isa Chinese citizen who currently lives in Beijing. Jane has a son, Bill, who is a U.S. citizen and lives in Texas. After speaking with her son, Jane decided that she would like to immigrate to the United States so that she could spend more time with her son. Therefore, Bill filed Form I-130, Petition for Alien Relative, so that his mother could immigrate to the United States through Consular Processing at the U.S. consulate in Guangzhou, China. Once the immigration petition is approved and all of the necessary forms are completed, Jane will go to the U.S. Consulate to apply for her immigrant visa. Since Jane is Bill’s mother, she will not be subject to any numerical restrictions, she is considered Bill’s immediate relative. Furthermore, Jane will not have to worry about the 30/60-day rule because the guideline does not apply to aliens who are the beneficiaries of I-130 petitions; the rule only applies to those who have been granted a non-dual intent, non-immigrant visawho wish to apply for a change of status or adjustment of status.

Exceptions for participants in the Visa Waiver Program (VWP)

While the immediate relatives of U.S. citizens are afforded the advantage of being exempt to the 30/60-day rule detailed above, the immediate relatives are also eligible for another rule exception: the ability to file for an adjustment of status through the Visa Waiver Program. Although the two areas of immigration law may appear to be disjointed, it is important to note that they both fall under the Family Based Immigration umbrella.

The Visa Waiver Program (VWP) allows nationals of 36 participating countries to travel to the United States for tourism or business for 90 days or less without having to obtain a visa. The program was established to eliminate unnecessary barriers to travel, stimulating the tourism industry, and permitting the Department of State to focus consular resources in other areas. VWP eligible travelers may apply for a visa, if they prefer to do so. Nationals of VWP countries must meet eligibility requirements to travel without a visa on VWP, and therefore, some travelers from VWP countries are not eligible to use the program. VWP travelers are required to have valid authorization through the Electronic System for Travel Authorization (ESTA) prior to travel, are screened at the port of entry into the United States, and are enrolled in the Department of Homeland Security’s US-VISIT program.

Usually an alien who enters on VWP cannot file for an adjustment status to lawful permanent resident status (green card holder) or change status to another non-immigrant status while in the U.S. By entering on VWP, the alien certifies to the Customs and Border Protection agent who admits you that you do not intend to stay in the U.S. If you intend to stay in the U.S., you are considered ineligible for the VWP and should seek the appropriate visa from the U.S. consulate in your country.

The exception to this is for immediate relatives of U.S. citizens who are the beneficiaries of an immediate-relative petition and file an adjustment of status application within the 90 day authorized period. [INA 245(c)(4)]. Sometimes, after people arrive in the U.S. on VWP, they might change their minds and decide they want to stay permanently with their U.S. citizen family member. If you are in the U.S. based only on the VWP, then you can file for a green card based on the following three conditions: marriage to a U.S. citizen, being the child of a U.S. citizen (under 21 years old and unmarried), or being the parent of a U.S. citizen, and the U.S. citizen child who petitions for you must be 21 years or older (these three bases together is called the “immediate relatives” category).

Example: Sara lives in England. Dan lives in Chicago and is a U.S. Citizen. Sara and Dan have been dating for 2 years, and Sara often comes to Chicago to visit Dan, never staying for more than 90 days. During one of Sara’s trips to Chicago, Dan proposes and Sara says yes. Sara and Dan would be able to get married right away and as a result of the marriage, Sara would be able to apply for an adjustment of status so she could remain in the U.S. Furthermore, Sara can file her adjustment of status at the same time that Dan files the immigration petition (I-130) petition for her within 90 days of herarrival at the US.

Furthermore, it should be noted that although it is best for the alien to file his/her adjustment of status application within the 90 day authorized period, an immediate relative of a U.S. citizen’s AOS application submitted after the VWP validity period will not be denied due to them being out of status, so long as the alien is otherwise eligible for the AOS application. [USCIS Field Operators Directorate][8 C.F.R. 1208.2(c)(3)(i)]For all other kinds of green card applications, you will still have to go through the consulate in your country after the initial petition has been approved by the USCIS.

As illustrated above, the immediate relatives of United States citizens are afforded certain advantages under immigration law. Whereas most aliens who come to the United States and wish to apply for an adjustment of status or change of status are subject to the 30/60-day rule, immediate relatives of US citizens are exempted from the burden of having to prove that they did not have a preconceived intent to immigrate. Furthermore, the immediate relatives are also able to circumvent the governance that prevents aliens visiting the United States as a part of the Visa Waiver Program, due to them having significant family ties in the United States. 

Author: Cameron Allison (cameron.allison@hooyou.com)

For more information about Family-Based Immigration, please click the following topics:

• Family based immigration
• Exceptions to the Fraudulent/Preconceived Intent (30/60/90-day Rule) Issue
• Frequently asked questions about family based immigration
• Attorney Fees