MANY individuals entering the United States on a visitor’s visa wonder whether they can adjust status on the basis of a petition from an immediate family member (spouse, parent, child). This is an area of immigration law that is a source of significant confusion, which we will demystify in this article.
As many B-1/B-2 visa holders know, the visa does not permit dual intent. Thus, a holder of such a visa should only intend to stay in the US temporarily as a visitor, and not intend to immigrate later. If a consular officer at an Embassy, or a border patrol officer at the airport suspects that an applicant intends to permanently immigrate when applying for a visa or trying to enter the US, the applicant will most likely be denied the visa or entry. If the officer knows or believes that the applicant has an immediate family member or fiancée in the US, a denial is also very possible.
This is where it becomes important to understand the issues of preconceived intent (PCI) and fraud. The general rule is that PCI is not an inadmissibility bar, but fraudulent misrepresentation under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA) is. Thus, even if deep down, a visa holder had preconceived intent, if they were never questioned about it by a consular or border officer, and they never stated anything untrue in their visa application, adjustment of status may be a lawful option.
To reiterate, preconceived intent is not generally a problem for immediate relative adjustment of status applicants. The Board of Immigration Appeals (BIA) has ruled that the substantial family unity equities involved in immediate relative adjustment of status situations outweigh the adverse factor of preconceived intent. Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980) and Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981) dealt with PCI for immediate relatives, specifically.
The “30/60 day rule” is often misunderstood in this context. The rule arises for B-1/B-2 visa holders that want to apply for a change or adjustment of status, but by doing so brings into question whether they harbored PCI when they applied for their visa or entered the US According to the Foreign Affairs Manual (FAM), the concept is only meant as guidance, not as a rule. Many (including immigration officers and attorneys alike) often misinterpret the concept to mean that if immigration paperwork is filed within 60 days of entry, a PCI finding is necessary. However, the ‘rule’ is merely guidance, and as described in the previous paragraph, the BIA has ruled that immediate relative applications are not subject to the guidance.
One may ask whether they can get in trouble for not saying anything when applying for a visa or entry to the US, and the answer is no—silence is not a ground of inadmissibility. When it comes to fraudulent misrepresentation, the key concept is that silence, or failure to volunteer information, is not a misrepresentation. This rule is provided to consular officers in the Foreign Affairs Manual (FAM) 9 FAM 40.63 and also found in the BIA’s holding in Matter of Tijam, 21 I&N Dec. 3372. (BIA 1998).
To summarize, PCI and fraudulent misrepresentation should be analyzed carefully as two separate issues. The 30/60 day rule is often misunderstood and misapplied as PCI does not in and of itself equal a misrepresentation in immediate relative adjustment of status cases. Silence when applying for a visa or entry to the US does not equal an affirmative misrepresentation. Of course, saying or doing something that is a misrepresentation equals fraud and may trigger the permanent bar under INA Section 212(a)(6)(C)(i).
Before filing for adjustment of status, a B-1/B-2 entrant must have their case evaluated by an experienced Immigration Attorney to understand how their entire immigration history – from B-1/B-2 visa application, entry to the US at the Port of Entry, and request to adjust status – comply with the law.
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Atty. Khurgel is a former USCIS and Department of State Embassy Officer with over ten years of government service and private immigration practice experience. His offices are located in Irvine, California.
