IMMIGRATION LAW MONTHLY

February/March/April 2007

Written by Henry J. Chang

I entered the U.S. in 2000 on a tourist's visa (I am a citizen of Thailand and was 17 years old at the time). My father, a permanent resident, filed a family-based petition for me. I have overstayed ever since. My petition was approved in June 2005 but somehow the approval notice was lost and I didn't find out about it until later. When I finally did receive an approval letter, it was apparently too late to file for adjustment of status because I moved from the 2a to 2b preference. On the other hand, I've been with my boyfriend, a U.S. citizen for about 2.5 years and now we are considering marriage. I just want to know how my marriage might affect the approved petition and whether my overstay will affect the new petition.

Since you have overstayed since 2000, you would have overstayed your Form I-94 expiry date by well over 12 months. So the 10-year unlawful presence bar has attached to you. Fortunately, it does not look like it has become effective yet because you have probably not left the United States since the bar first attached.

If you choose to apply for permanent residence through the family-based 2b preference you still have several years of waiting ahead of you. Since your father filed your I-130 petition back in September 2000 and were physically present in the United States on December 21, 2000, you should be grandfathered for adjustment of status under INA 245(i). If you want remain in the United States until your priority date becomes current, you should be able to file adjustment under INA 245(i) and become a permanent resident without leaving the United States. If you do this, the 10-year unlawful presence bar will never attach to you.

Of course, if your United States citizen boyfriend files a Form I-130 petition for you as his spouse, you are allowed to file for adjustment of status under INA 245(a), the normal adjustment provision. Despite the fact that you are currently illegal, this does not preclude you from seeking adjustment of status under INA 245(a) if you are the spouse of a United States citizen. If you marry and the file for adjustment of status as the spouse of a United States citizen, you can also become a permanent resident without leaving the United States and the 10-year unlawful presence bar will never attach to you.

Which option you choose is up to you but the spousal case is going to be much faster. With the 2b preference, you will still have to remain in the United State illegally for several years and will be at risk of getting caught and being put into removal proceedings.

I recently received an interesting message from the United States Embassy in Kyiv, Ukraine. It stated that "U.S. embassies worldwide are no longer able to accept or adjudicate I-130 petitions." They advised that I (a U.S. citizen) should file the Form I-130 petition with the appropriate United States Citizenship and Immigration Services ("USCIS") regional office in the United States. Direct consular filing apparently does not exist anymore. But I do not currently reside in America .... I reside in Ukraine. I have a postal address in Washington State, but maybe I should file at the USCIS sub-office in Moscow? Or is the Nebraska Service Center more appropriate? I checked the USCIS website, and they state that Washington residents should file in the Nebraska Service Center but a check of processing times indicate Nebraska does not process Forms I-130.

I think I should give some background for this question before I answer it. Many years ago, consular posts adjudicated immediate relative petitions where the petitioner and beneficiary were located within the consular district. The practice was later discontinued but consular posts started doing it again a few years back.

On July 27, 2006, the Adam Walsh Child Protection and Safety Act (the "Adam Walsh Act"), Pub. L. No. 109-248, became law. The Department of State ("DOS") subsequently announced that, as a result of the Adam Walsh Act, consular posts were no longer permitted to accept or adjudicate any I-130 petition that had not been adjudicated by USCIS. Consular posts stopped doing it for this reason.

Fortunately, on March 21, 2007, DOS announced that it had worked with USCIS to develop a procedure for performing the required Adam Walsh Act checks for any petitions accepted abroad by consular officers. As a result, consular posts again began accepting Form I-130 petitions where the petitioner and beneficiary were located within the consular district.

In other words, you should be able to file your Form I-130 petition with the United States Embassy in Kyiv now.

I have been studying in the United States on an F-1 for several years now. I married a United States citizen. I then left the country and reentered using my F-1 visa, not intending to immigrate at that time (I was not questioned about this by the immigration officer). However, our plans have now changed and I will be applying for permanent residence by way of adjustment of status. How soon after I enter the country can I file my application without running the risk of being accused of fraud, based on my entry as a student? When can I begin gathering the documents supporting my application?

There is no absolute answer to your question since USCIS does not have any specific guidelines on when the issue of fraud can arise in such cases. However, DOS has developed a fraud rule that they apply at United States consulates. While DOS guidance is not necessarily binding on USCIS, it carries some weight and USCIS officers tend to follow it. So let's start with that.

Here are the relevant notes from 9 FAM §40.63 of the Foreign Affairs Manual ("FAM"):

N4.7-2--Within 30-Days (TL:VISA-313; 08-27-2001)
If an alien violates his or her nonimmigrant status by adjusting status or by seeking unauthorized employment within 30 days of entry, the consular officer may presume that the applicant misrepresented his or her intention in seeking a visa or entry.
N4.7-3--After 30 days But Within 60 (TL:VISA-313; 08-27-2001)
If an alien initiates such violation of status more than 30 days but less than 60 days after entry into the United States, no presumption of misrepresentation arises. However, if the facts in the case give the consular officer reasonable belief that the alien misrepresented his or her intent, then the consular officer must give the alien the opportunity to present countervailing evidence. If the officer does not find such evidence to be persuasive, then the consular officer must submit a comprehensive report to the Department (CA/VO/L/A) for the rendering of an advisory opinion.
N4.7-4--After 60 Days (TL:VISA-313; 08-27-2001)
When violative conduct occurs more than 60 days after entry into the United States, the Department does not consider such conduct to constitute a basis for an INA 212(a)(6)(C)(i) ineligibility.

To summarize, the 30/60 fraud rule says that if you seek adjustment of status within 30 days of your entry, you will be presumed to have committed fraud and must provide evidence to rebut this presumption. If you seek adjustment after 30 days but within 60 days of your entry, there is no presumption but they can still accuse you of fraud. If you seek adjustment after 60 days, it would not be an issue.

So if the USCIS adopts a similar rule, my advice to you is to wait at least 60 days after your entry before you file your application for adjustment of status. There should be nothing wrong with gathering documentation in advance as long as you do not file the actual paperwork until at least 60 days have passed. If you really have to file before 60 days have passed (I don't recommend it), at the very least, I would wait until 30 days have passed. At least this will avoid the presumption of fraud.

I should also mention that adjustment of status is considered a privilege, not a right. It can still be denied if USCIS determines that negative factors exist, including preconceived intent to be an immigrant at the time of entry as a nonimmigrant. So if USCIS believes that you had preconceived intent to be an immigrant at the time of entry, even if you did not actually commit fraud, they can still deny your adjustment of status application as a matter of discretion.

Fortunately, as a result of Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980) immediate relatives are exempted from this potential problem. According to Matter of Cavazos, in the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain. So in your situation, your adjustment of status application should not be denied on the basis of preconceived intent.

My spouse obtained his green card through adjustment of status under the employment-based second-preference. I obtained my green card as the derivative spouse. Two and a half months after he obtained his green card, he quit his job. We are now eligible to apply for United States citizenship. Will USCIS find my spouse inadmissible because he quit his job so soon after obtaining his green card? If he is found to be inadmissible because of that, will my green card also be in jeopardy?

There is no mandatory minimum period during which an alien must work for the petitioning employer after he or she acquires lawful permanent residence. Back in 1996, there was some talk of imposing minimum employment periods for employment-based immigrants, but the legislation never passed.

Therefore, the key issue here is whether your spouse truly intended to work on a permanent, full-time basis with the petitioning employer at the time that he obtained his lawful permanent residence. If the facts support a finding that he did not, then this might raise potential issues of fraud.

If we apply DOS' 30/60 fraud rule described above (even though it admittedly applies to a different situation), I think he is fine. More than 60 days clearly passed before your spouse quit his job. In this situation, his conduct probably would not support a finding of fraud or misrepresentation.