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Attention Tourist Visa (B1/B2) and F1 Student Visa and I-485 applicants. The Question of Intent.

Often immigrants to the United States want to maintain lawful status under all circumstances, and go to various lengths to avoid falling out of status.  But at times, while maintaining lawful immigrant status is the goal, well-intentioned individuals end up harming their immigration application, rather than helping.  Remember that immigration law changes at a rapid pace as compared to other areas of laws, and at times the law does not seem to make sense, and often dupes eager and unassuming do-it-yourselfers. 

Here is a common scenario:

Applicant is in US on F1 status and married to US citizen. When F1 status ends, in order to avoid falling “out of status” while the adjustment of status application is pending, the Applicant applies for B1/B2 tourist visa to fill the gap. The B1/B2 application is denied and now this Applicant faces a misrepresentation bar from adjusting status. 

This applicant now has to apply for a waiver of misrepresentation, which involves proving that the US Citizen Spouse will face extreme hardship if this individual was not allowed to adjust status in the US.  The applicant also risks deportation if the misrepresentation waiver application is not approved. Let us examine what exactly happened.

F1 (student visa) and B1/B2 (tourist visa) both require non-immigrant intent. This means that by applying for each of these visas, the applicant is claiming that he or she has plans to return to his or her country of citizenship, or otherwise exit the US. The applicant is specifically claiming that he or she DOES NOT have intention to immigrate to the United States to become a permanent resident.

Unfortunately, this applicant has also filed for an Adjustment of Status to Permanent Residence based on his or her marriage to a US Citizen.  This application, unlike the F1 and B1/B2, is for people who specifically intend to become permanent residents of the United States.  The two applications are therefore contradictory in the intent.  By applying for adjustment of status, the Foreign National (FN) has admitted that he or she does not have the “non-immigrant intent” required by the B1/B2 or the F1 visa.  In attempt to maintain lawful status, this applicant applied for B1/B2, which, according to USCIS, was a misrepresentation of intent.

Extending ones non-immigrant status has similar problems.  The underlying problem is that people often mistakenly assume that Visas are interchangeable.  They also mistakenly assume that applying for a particular visa is not harmful, and that the worst that can happen is that they get denied.  Both ignore the fact that merely by applying for a particular visa, a claim of an intent is made, and that each visa carries with it very specific purpose and requirements.

I hope that this helped to illustrate the intricacy and complexity of seemingly simple applications.  Do not forget that immigration law is complex.  The US government (like governments of all countries) faces an incredible responsibility of assuring that its citizens are safe, and screening its future citizens.  I hope that this article will help you avoid such a mistake in the future. If you have any questions, give us a call at 312-854-7065 for a consultation by phone.

This article was written by: dhenu

  1. 3 Comments

    • S.K.Kim says:

      EB-2 case

      I Come to USA Jun (B1, D/S DEC)

      LC apply Jul ,approved Sep

      I-140 premium(REF),may approve before Oct 31 if no problem,counselor processing.

      Now I want try to apply I-485 here from B1 to Permanent stay on NOV

      Is it dangerous?

      Thanks..

      • dhenu says:

        See comment below.

    • dhenu says:

      Your scenario seems to be one of changed intent. if so, it is permitted. You should have your attorney go through your entire immigration history and make sure it is safe.

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