Frequently, a potential client, who is a U.S. citizen, asks if their spouse from [insert country of choice] can enter on a visitor visa and then adjust status. Well, the answer to that question, like many others in the law, is “it depends.”
Immigrant Intent at the Consulate
In order to answer that question, let’s first examine the nature of the visitor visa. The B-1/B-2 visitor visa is not a dual intent visa. Meaning, the person has the intent to stay temporarily in the United States, after which they intend to return to their home country. That is, there is no intent to establish residence in the U.S. So, if the consular officer asks the spouse whether s/he intends to establish residence in the U.S. and s/he says “yes,” the consulate will not issue the visa.
What is the distinction between preconceived intent and fraudulent intent?
Keeping in mind the nature of the visitor visa, we need to next discuss the concepts of preconceived intent (“PCI”) and fraudulent misrepresentation, because there is a very important distinction between the two. Fraudulent misrepresentation triggers an inadmissibility bar, whereas PCI does not. If a foreign national willfully provides incorrect information to immigration officials about their intentions for entering the country, that person will be found inadmissible. Why is this important? Because an application for an adjustment of status is an application for admission. This is counterintuitive to many clients because the foreign national is already in the U.S. when the adjustment of status application is made. While this is true, the United States Immigration and Customs Enforcement (“USCIS”) treats the foreign national as if they are outside the U.S., seeking to enter. As a result, USCIS assesses the foreign national for all grounds of inadmissibility.
To illustrate this distinction, let’s assume that the potential client’s spouse went to the consular interview in his/her home country. Although the spouse intended to establish residence in the U.S. at the time of the interview, the consular officer never asked and granted the visitor visa. While the spouse had PCI, the souse did not willfully provide incorrect information to the consular officer and no bar to admissibility was triggered. The spouse then boards a plane headed for the U.S. Once the spouse steps off the plane, s/he is met by a border official, who 99% of the time ask, “What is the purpose of your travel?” Now, what does the spouse say? If the spouse says that his or her intent is sightseeing, they have willfully provided incorrect information to the border official. Thus, the spouse is inadmissible because s/he has made a fraudulent misrepresentation and accordingly ineligible for adjustment of status.
Let’s further assume, that the potential client and spouse decide to make an application for adjustment of status without consulting an immigration lawyer. USCIS calls the happy couple for their interview. They are thinking this great, our marriage is legitimate, nothing can go wrong. The adjudicator will be assessing the spouse for all grounds of inadmissibility during the interview. The determination that a foreign national has made a fraudulent misrepresentation is a finding of fact. The adjudicator can look at all the facts and evidence available to decide if the spouse has ever willfully provided incorrect information to immigration officials. A finding of fraudulent misrepresentation may be based solely on the interview and the adjudicator’s impressions from that interview. Remember, the potential client’s spouse told the border official at the airport that his or her purpose for traveling to the U.S. was sightseeing. However, the adjudicator also knows that married couples tend to live together. So, it is not unthinkable that the adjudicator would make a finding that the spouse willfully misrepresented his/her stated purpose for travel. In such cases, the adjudicator will deny the application based on a finding of fraudulent misrepresentation. If the application is denied, the spouse must leave the U.S. or risk deportation.
However, the spouse’s problems do not end there. A finding of fraudulent misrepresentation makes him or her permanently inadmissible for entry into the U.S. Yes, the spouse may seek a waiver of this ground of inadmissibility, but this requires a showing of “extreme hardship” to the citizen spouse. The average couple will be unable to make this showing to win a waiver.
adjustment of status appropriate for those foreign national spouses on a visitor visa?
So, when is it appropriate for the spouse, who is in the U.S. on a visitor visa, to adjust status? The answer is: Only in those cases, where the spouse truly entered without the intent to establish residence and there has been a change of circumstance since entering, may the spouse adjust status. Still, the couple must be able to persuasively explain to the USCIS adjudicator at the interview what that change in circumstances is in order to prevent a finding of fraudulent misrepresentation. Even in these cases, I recommend that the spouse not make an application for adjustment within 90 days of entry. Before 90 days, there is a presumption of fraud if the spouse violates his or her nonimmigrant status or acts inconsistent with that status. Although this is a rule the Department of State adopted and therefore not binding on USCIS adjudicators, it is nevertheless frequent applied to adjustment of status cases. As such, if the spouse tries to adjust status within the 90-day period, they should expect increase scrutiny on the application.
If the above-mentioned change of circumstances does not apply in your case, don’t panic. There are other means for you to become a U.S. resident. There is a process for seeking an immigrant visa outside the U.S. If the ultimate goal is to live happily ever after, in the U.S., this may be the best strategy, even if it means living apart for a period. On the other hand, choosing to seek