Adjustment of Status to Green Card while on 2nd Trip on same B2

Thank you so much for your helping with my urgent immigration question!

In the interest of clarity, I’d like to offer a quick summary regarding the crux of my concern:

My wife of two+ years, an Indonesian citizen, arrived on a B2 visa into the U.S. together with me, a U.S. citizen, last April (2011) with the intention of staying for a period of 6-ish months and then returning together to Indonesia to work and live. In the meantime, we have decided to stay on here in the U.S. instead of returning to her country or to a third country.

Our point of departure on our way to the U.S. was South Korea, where we had been living for almost two years and where I had just finished my second contract as an English Conversation Teacher.

We entered the U.S. as a legally married couple and we informed the Immigration Officer at SFO of that fact. Additionally, I informed the Immigration Officer that we had not yet purchased a return ticket for my wife because our intended stay was for a then-undetermined period (adding that there was even a possibility that we would extend her I-94 during our stay.) The Immigration Officer assured us that would be no trouble and that not having a return ticket that far in advance without a solid departure date was not a problem (I assume this was because she is married to a US citizen).

I have been advised by a local immigration attorney that we may have a very difficult time proving that we weren’t attempting to “jump the line” or “jump the process” for her Adjustment of Status by arriving on a B2 visa and then going through the Green Card process directly here in the U.S. Also, we do not have any correspondence / documentation regarding housing or job searches with anyone in her country to support our claim that we were looking to return there. [Moving back to Indonesia would have seen us living at her family’s house and only then looking for work.]

We have a clearly valid and highly documented marriage of two+ years and all of our other bona fides are in order.

The question at hand is thus, will our lack of documented proof of our initial intention be an insurmountable hurdle in my wife’s Green Card interview?

My understanding of the U.S. immigration laws is such that there is no “line” for the spouses of U.S. citizens; there is always a visa available for them and so they are free to adjust their status at any time. Is that correct and applicable to our situation?

I'm nearly at my wit's end here imagining that she (or we) might have to go back to Indonesia for an extended period (8 - 10 months), when we very much would prefer to be here.

Thank you again for any and all guidance you might be able to provide!

-Djep

Djep

Comments

... additional info ...

A quick note regarding her current B2 visa:

Our current trip to the US is her second on her long-term B2 visa. That visa was obtained nearly a year-and-a-half ago in Seoul, as South Korea was our residence at that time, and its initial intent was for the purpose of visiting the U.S. for tourism (her first visit to the US) and, more importantly, for our wedding reception. After obtaining that visa, we visited the US in 2010 for approximately 30 days for those very purposes before returning "home" to Korea to resume work.

Phil's picture

AOS After Entry on B2 Visa

Hi Djep, my sincere apologies for taking so long to respond to this post. I try to keep up with this forum but sometimes I get quit busy and my cases have to come first.

The issue you present is a common concern with couples in your situation. The general rule or principle is that a foreign national cannot enter the U.S. with a non-immigrant visa if, at the time the FN enters the country, the FN has the intent to immigrate. This is considered immigration fraud fraud and can be a very serious problem. However, there is absolutely nothing illegal or fraudulent with a FN entering the U.S. on a non-immigrant visa with no intent to immigrate and then later something changes and the FN decides to immigrate. This happens all the time.

In your case, you were completely forthright with the immigration officer and did not try to hide the fact that you were married or otherwise do anything that fraudulent.

If your wife entered the U.S. on a B2 visa with the intent to leave at some point but later decided to stay and apply to adjust her status it's not a problem.

Also, in my experience the USCIS is not really concerned about this issue unless it is an extremely obvious and egregious case. I've handled 100's of adjustment cases just like yours and the issue has never even been raised.

Furthermore, it's also very hard to prove someone's mental state. Perhaps most importantly, if the immigration officer had any concern about your wife's intent to immigrate he would not have allowed her to enter.

Based on the information you have provided and my general experience with these cases I don't think you have to worry about this but I can't say that with 100% certainty without spending some time learning about your case.

If you think you might want some assistance with this email me and we can talk in more detail.

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