Any similar case?

[yixuan]

Few days ago, I got a pink paper from USCIS asking for initial evidence for I-485 and also a penalty of extra 90 days waiting for my EAD due to that. Nothing wrong on our part since we mailed 2006 year extension and W-2s together with tax returns of 2004 and 2005. Having no help from USCIS customer service, I started to check on line and then visited visajourney.com, fortunately? or unfortunately? (Kinda of late anyway), I noticed the ¡°BE WARNED¡±, reading ¡°If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration then he/she should return to his/her home abroad¡­ to avoid denial, deportation, or even being banned from re-entry to the US¡±. Definitely unluckily, I am one of that high-risk kind.

 

Here is my case. My husband and I have worked together in China since April 2005 and then I got a B-1 (through the company my husband and I worked for, also we had a meeting to attend at the US company) to US and we got married in Las Vegas in Dec. 2006. After that, we returned to China together and continued to work there. Because of his medical reason, he was found that he was not suitable to work in China anymore at his last trip to US (03/22/07), so I flew to US alone on 05/08/07 on B-1. I sent my I-130 on 05/16/07 and the I485 package (including I-131, and I-765, I-864, I-693) on 06/26/07 and had my photo and finger print taken on 07/27/07.

 

When we were having Infopass appointment with a Portland local Immigration Officer before we filed the AOS package, we were told we were really lucky to travel with my B-1 twice without denial. In another word, I am in the US illegally. Woo, being a good kid in my whole life but entering US illegally. TWICE. I am lost and wondering whether sometime this year I can get my case straight. 

 

Is there any similar case? Any suggestion what I should do? Thanks, guys.

[dnoblett]

Here is my case. My husband and I have worked together in China since April 2005 and then I got a B-1 (through the company my husband and I worked for, also we had a meeting to attend at the US company) to US and we got married in Las Vegas in Dec. 2006. After that, we returned to China together and continued to work there. Because of his medical reason, he was found that he was not suitable to work in China anymore at his last trip to US (03/22/07), so I flew to US alone on 05/08/07 on B-1. I sent my I-130 on 05/16/07 and the I485 package (including I-131, and I-765, I-864, I-693) on 06/26/07 and had my photo and finger print taken on 07/27/07.

 

When we were having Infopass appointment with a Portland local Immigration Officer before we filed the AOS package, we were told we were really lucky to travel with my B-1 twice without denial. In another word, I am in the US illegally. Woo, being a good kid in my whole life but entering US illegally. TWICE. I am lost and wondering whether sometime this year I can get my case straight. 

 

Is there any similar case? Any suggestion what I should do? Thanks, guys.

Yes you are in that high risk category. USCIS will see the date on the marriage cert being BEFORE entry date on the B-1 visa I-94 card and can and probably will deny.

 

Using a NON-Immigrant visa other than K-Visas and other dual purpose visas with intent to Immigrate is visa fraud. They will have solid evidence.

 

People who adjust from a visitors visa usually marry a month or so after entry and adjust avoiding the suspicion of visa mis-use.

 

I would be consulting a competent immigrations attorney.

 

Example of someone on VJ contemplating similar.

 

http://www.visajourney.com/forums/index.ph...t&p=1106659

[Randy W]

Now, wait Dan! In one sentence, you call it fraud. In the next, you are promoting it. Waiting one month changes only apparent intent, not the actual intent.

 

It seems the issue here is the B-1 visa. There is nothing wrong with getting a B-1 visa, nothing wrong with using it, and nothing wrong with getting married anytime, anywhere.

 

So the issue would be over-staying the B-1 and filing the I-485 while here.

 

Doesn't she simply need to return to China to await the processing of the I-130? If she does, what are the complications of the over-stay, and having filed the I-485? and , yes, talk to an immigrations attorney.

 

Did her latest B-1 application state that she was married?

Edited August 9, 2007 by Randy W (see edit history)

[dnoblett]

Now, wait Dan! It seems the issue here is the B-1 visa. There is nothing wrong with getting a B-1 visa, nothing wrong with using it, and nothing wrong with getting married anytime, anywhere.

 

So the issue would be over-staying the B-1 and filing the I-485 while here.

 

Doesn't she simply need to return to China to await the processing of the I-130? If she does, what are the complications of the over-stay, and having filed the I-485?

 

Did her latest B-1 application state that she was married?

They filed to adjust status from a non-immigrant tourist (B-1) Visa. They married before using the Visa. Tourist visa is not an immigrate visa, using an Non-Immigrant visa with the INTENT to immigrate is visa fraud. The INTENT was demonstrated by filing the I-485 package after traveling on the Non-Immigrant visa. I read of Canadians getting burned all the time for this, they think that since they can just travel across the border that they can just visit and adjust status, it dose not work that well for them also.

 

The proper method would have been to file for a CR-1 or K-3 visa.

[Randy W]

They filed to adjust status from a non-immigrant tourist (B-1) Visa. They married before using the Visa. Tourist visa is not an immigrate visa, using an Non-Immigrant visa with the INTENT to immigrate is visa fraud. The INTENT was demonstrated by filing the I-485 package after traveling on the Non-Immigrant visa. I read of Canadians getting burned all the time for this, they think that since they can just travel across the border that they can just visit and adjust status, it dose not work that well for them also.

 

The proper method would have been to file for a CR-1 or K-3 visa.

 

 

The I-130 is the application for the CR-1. By "getting burned", what do you mean? What happened to those people?

 

Sorry, I think the word "fraud" is tossed around too easily here and at VJ - it's a very serious accusation, and we don't know the details. Her lawyer and the USCIS should be able to sort out her status, hopefully for the better.

[warpedbored]

Portland Oregon I presume? There are about 20 CFL couples here in the Portland area. We have get togethers about 3 time a year.

 

I agree an immigration attorney should be consulted. Bottom line though is matter of intent. If you came here on a tourist or business visa with the intent to marry then it is visa fraud. If you came here for a legitimate business matter and became overwhelmed with passion and decided to marry then that is perfectly legal. Where you made the mistake was going back to China then coming here again. Definetly don't leave the country without good legal advice first. I have no first hand experience but I have heard that this lawyer here in Portland is very knowledgeable in immigration matters as they pertain to China.

 

 

 

Office Location:

Chen, Mu & Associates

1000 SW Broadway, Suite 2150

Portland, OR 97205

USA

 

Phone/Fax Numbers:

phone: (503) 222-3384

fax: (503) 222-7779

 

Email Address:

baolinchen@usworkingvisa.com or

shawamu@usworkingvisa.com

 

Website:

www.usworkingvisa.com

[dnoblett]

They filed to adjust status from a non-immigrant tourist (B-1) Visa. They married before using the Visa. Tourist visa is not an immigrate visa, using an Non-Immigrant visa with the INTENT to immigrate is visa fraud. The INTENT was demonstrated by filing the I-485 package after traveling on the Non-Immigrant visa. I read of Canadians getting burned all the time for this, they think that since they can just travel across the border that they can just visit and adjust status, it dose not work that well for them also.

 

The proper method would have been to file for a CR-1 or K-3 visa.

 

 

The I-130 is the application for the CR-1. By "getting burned", what do you mean? What happened to those people?

 

Sorry, I think the word "fraud" is tossed around too easily here and at VJ - it's a very serious accusation, and we don't know the details. Her lawyer and the USCIS should be able to sort out her status, hopefully for the better.

The I-130 when combined with I-485 filed in the USA is adjustment of status from another non immigrant visa type, and is not being used for an immigrant visa.

 

This is what the OP got from VJ:

BE WARNED:

You must qualify to file for an I-130 in the US. Not everyone does, and in some cases doing so can be considered fraud and result in being deported and banned from re-entry into the US for a period of time. If you attempt to file and you do not qualify your legal status in the US can be placed in jeopardy. J1 Visa holders will almost always require a waiver and should consult with an immigration lawyer or the USCIS for more information. If you have any doubt, consult an immigration attorney.

 

If your fiance/fiancee came to the US on a tourist visa with the intent of immigration and marriage, and you are not yet married, then he/she should return to his/her home abroad, and the K-1 visa should be filed (using an I-129f) instead of the I-130 to avoid a denial, deportation, or even being banned from re-entry to the US.

 

If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad, and the I-130 (or along with an I-129f for a K-3 Visa) should be filed with the relative outside of the U.S. to avoid denial, deportation, or even being banned from re-entry to the US.

The above conditions are serious and can result in the separation of families for many years if not taken seriously.

http://www.visajourney.com/forums/index.ph...page=i130guide2

[david_dawei]

I don't think the fraud was intended... that's as easily seen in the entire case. It will be up to the Adjusting Officer to denied and discretionary power will allow them to "understand the situation" or to "lay down the law" as they see fit.

 

here, the case is being adjusted under family based filing (I-130) and married to a USC is known to [at times] forgive illegal entry and/or work and/or overstay... so it's anyone's guess what will really happen.

 

IMO... I'd just wait for the interview and be ready to show the sincerity of the actions from beginning to end; If you truly wanted to committ fraud, you would of adjusted after the marriage while still in the US.. ergo: That [fraud] was not the intention. Obviously ignorance of the law is no excuse but POE allowed entry... Your here, you filed, I would stay and wait out the interview... (as carl said, don't leave the US without sound advice).

Edited August 9, 2007 by DavidZixuan (see edit history)

[Randy W]

One advantage you have while in the US is access to the immigration courts, which will rule on the facts and the law. A USCIS ruling doesn't have to be the final word.

[Randy W]

I don't think the fraud was intended... that's as easily seen in the entire case. It will be up to the Adjusting Officer to denied and discretionary power will allow them to "understand the situation" or to "lay down the law" as they see fit.

 

here, the case is being adjusted under family based filing (I-130) and married to a USC is known to [at times] forgive illegal entry and/or work and/or overstay... so it's anyone's guess what will really happen.

 

IMO... I'd just wait for the interview and be ready to show the sincerity of the actions from beginning to end; If you truly wanted to committ fraud, you would of adjusted after the marriage while still in the US.. ergo: That [fraud] was not the intention. Obviously ignorance of the law is no excuse but POE allowed entry... Your here, you filed, I would stay and wait out the interview... (as carl said, don't leave the US without sound advice).

 

 

Fraud MUST be intentional, in order for it to be fraud. That is, they must knowingly break the law in order to gain something to which they are not entitled.

 

That's why I object to the use of the word when we either aren't sure or when we do know that the intent to break the law was not there.

 

This case is apparently NOT fraudulent - but her lawyer can better address that issue. My guess it will be a much more amicable case than what we are implying.

[jim_julian]

David raises an excellent point about the POE officials allowing the second entry. That's a powerful argument that there was no intent to commit fraud. If entry would have been refused the OP would have returned to China and filed from there.

 

Of course consult with the immigration lawyer but be sure everyone is well aware of the point David makes.

[Randy W]

David raises an excellent point about the POE officials allowing the second entry. That's a powerful argument that there was no intent to commit fraud. If entry would have been refused the OP would have returned to China and filed from there.

 

Of course consult with the immigration lawyer but be sure everyone is well aware of the point David makes.

 

 

Sorry, but I think that's where she might be open on a fraud accusation - if she filled out the visa application as single, for example.

Edited August 9, 2007 by Randy W (see edit history)

[jim_julian]

David raises an excellent point about the POE officials allowing the second entry. That's a powerful argument that there was no intent to commit fraud. If entry would have been refused the OP would have returned to China and filed from there.

 

Of course consult with the immigration lawyer but be sure everyone is well aware of the point David makes.

 

 

Sorry, but I think that's where she might be open on a fraud accusation - if she filled out the visa application as single, for example.

 

 

Hmmmm .... maybe you're right ... lawyer time.

[esun41]

I have a friend who just filed I-130 and I-485 at the same time. She was here on a tourist visa and met an American man with whom she was asked to marry. Her intent originally was to visit her brother and family. She extended her visa 1 time and as it was about to expire, filed the paperwork for the above. Maybe I missed something but what is the difference between what this thread and what my friend is doing AND she's allowed to stay in the states while waiting? I would like to believe that the authorities would understand that people's lives and intentions change.

 

 

 

P.S. She is using a immigration lawyer!!!

[Randy W]

I have a friend who just filed I-130 and I-485 at the same time. She was here on a tourist visa and met an American man with whom she was asked to marry. Her intent originally was to visit her brother and family. She extended her visa 1 time and as it was about to expire, filed the paperwork for the above. Maybe I missed something but what is the difference between what this thread and what my friend is doing AND she's allowed to stay in the states while waiting? I would like to believe that the authorities would understand that people's lives and intentions change.

 

 

 

P.S. She is using a immigration lawyer!!!

 

 

She met the man AFTER she arrived on the visa - her intent was obviously not to use the visa to come here and marry him. That's the difference.

 

The visitor's visas are not intended to be used to bypass the K1/K3 procedures. The facts of a particular case are best sorted out by a lawyer who knows both the facts and the law.