Several time per week I get a question that comes something like this:
I’m a U.S. citizen and my wife is from China [or insert any other country. She has a visitor’s visa and is planning to come to the U.S. later this month. Will we be able to adjust status so she can get a green card?
Or here is another familiar version:
My husband lives in the United Kingdom [Japan, Australia, Germany… pick any Visa Waiver Program country] and has registered for ESTA. I’m a U.S. citizen. Is he allowed to come to the U.S. on ESTA and then adjust status to permanent resident?
The answer is no! No, no, no, no. Let’s look carefully at what’s going on here.
Tourists visas and ESTA are for temporary travel.
Visa categories in the United States are always tied to a particular purpose. It should be no surprise that the purpose for tourist visas is… well, you can guess. When you apply for a tourist visa or ESTA you are telling the United States government: “I would like to travel to the United States for a short period of time as a visitor, after which I promise to go back to my country of origin.” If you have ever gone for a visa interview then there is a good chance you were asked a question about the purpose of your trip. What would happen if you interviewed for a tourist visa and told the consular officer: “I’m applying for this visa so I can move to the U.S. and work!” Application denied.
Now, let’s say you’ve been issued your tourist visa (B-2) or have registered for ESTA. You hop on an airplane and arrive at a U.S. port of entry (i.e., the airport). There, you will be greeted by a friendly representative of the U.S. Customs and Border Patrol (CBP). What is the very first question that the CBP officer is going to ask you? Nine times out of ten it is, “what is the purpose of your trip to the United States?” Your answer to that question matters. And it had better be consistent with the authorized purpose allowed for your visa category. Again, for a B-2 or ESTA that’s a temporary trip for pleasure to the U.S. If you’re answer to the CBP officer is inconsistent with your visa authorization then you’re not getting past the port of entry. We’ll talk below about what will actually happen.
The concept of immigrant intent
There is one crucial question that the consular officer and the CBP official will be asking themselves: “does this person have immigrant intent?” Immigrant intent is the subjective intention to remain permanently in the U.S. That is, these officials are asking themselves whether you are secretly planning to become a permanent resident.
If you want the statutory citation here it is: Immigration and Nationality Act Section 214(b). It states:
Every alien (other than a nonimmigrant described in subparagraph (H)(i) or (L) of Section 101(a)(15)) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15).
Note that the statute says “shall be presumed to be an immigrant.” This means that the foreign national has to convince the consular officer, and the CBP official, that she doesn’t intend to become a resident of the United States.
So let’s go back to the hypothetical individuals discussed at the top of this post. The Chinese wife plans to enter the U.S. on a B-2 visa and then become a resident. That means she will have to conceal that intention (and probably lie) two times: first when she applies for the visa, and then again at the port of entry to the CBP officer. When the CBP officer asks her for the purpose of her trip, what can she say? The real purpose is that she wants to stay in the United States to live with her husband. But if she admits that to the officer then she clearly has immigrant intent and can’t be let into the country.
Same problem with the husband from the United Kingdom. Unlike the Chinese wife he doesn’t have to talk to a consular officer, since he just applies for ESTA online. But like the Chinese wife, he will be questioned at the U.S. port of entry. If he discloses the purpose of his trip then he won’t be allowed into the country. Which brings us to…
What happens if the border official decides you have immigrant intent?
Assume that the husband from the United Kingdom is interviewed by the CBP official and the official finds out that the husband has a U.S. citizen spouse. The official now has a basis for suspecting that the husband is planning to move to the United States, since married couples tend to live together. If the official determines that the husband has immigrant intent then that is usually the end of the road. There is no right to an attorney at a U.S. port of entry. That means that even if you are currently represented by a U.S.-licensed attorney, CBP does not need to communicate with that attorney. Sometimes they will, but they’re under no obligation. In reality, once the immigrant intent finding has been made it will stick.
Now what? If the husband is lucky he will simply be put on the next flight back to London. He will placed in a holding cell until the flight is available. Depending on the circumstances he may be relocated to an off-site detention facility to wait for a flight to be available. Once he is returned to the United Kingdom he will probably not be able to use ESTA to travel, potentially for the rest of his life. ESTA is a trusted traveler program, so his rule-violation means that he may not be able to register again.
What if he is unlucky? I spoke to a CBP official about these scenarios at a recent conference. He said that if someone like husband is completely honest, and simply didn’t understand the rules, then he will likely just be sent back. But if the CBP officials think that the husband has been lying the situation is completely different. In that case CBP can place the husband into expedited removal (read: deportation) proceedings. The husband is then subject to a deportation order and barred from the U.S. for three years. The same can be done to the Chinese wife, entering on a B-2, if CBP thinks that she is lying.
So if husband is determined to have immigrant intent, in the very best scenario he will be sent home and will have a difficult time traveling to the U.S. as a visitor again. On the worse case the husband will be deported and subject to a three-year ban.
But let’s say that the individual gets in to the U.S. on B-2 or ESTA – can she now file for adjustment of status. No!
Even if the person gets into the U.S. they still cannot adjust status to permanent resident.
Let’s say our Chinese wife gets into the United States on her B-2 visitor’s visa. Remember that all along she was planning to apply for residency, so after entry her husband files and I-130 Petition for Alien Relative and she files an I-485 Application to Adjust Status to Permanent Resident. She’s already in the country, and their marriage is legitimate, so is she home free? No.
An I-485 application for permanent residency is considered an application for admission to the U.S. This is a counter-intuitive concept that many struggle with. Even though the applicant is already in the country, U.S. Citizenship and Immigration Services (USCIS) treats the person as though they are outside the U.S. and seeking entry. Why does that matter? Because the person is screened for all grounds of inadmissibility.
What are the grounds of inadmissibility? The immigration statute has a long list of rules about whether a person is admissible to the U.S. A person is considered inadmissible if she has certain diseases, has committed certain crimes, is a security threat, etc. But a person is also inadmissible if she has committed immigration fraud. Under INA 212(a)(6)(C)(i):
Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.
This says that if you used “fraud” or “willfully misrepresented a material fact” to secure entry into the U.S., then you are considered inadmissible.
So let’s go back to the port of entry. Remember that CBP official’s job was to ensure that the purpose of the person’s trip was consistent with their visa category, and that the person was not intending to reside in the United States. And to make it past the port of entry, the foreign national had to convince the CBP official that she planned to return home. Now that our Chinese wife is applying for adjustment of status, the USCIS officer gets to look back and ask, “was that person honest when she entered the U.S. on a B-2, or did she secretly plan to seek residency?” Remember that the USCIS adjudicator is asking this question while a residency application is sitting in front of her.
The question of fraud/misrepresentation is a factual one. That means the USCIS adjudicator can look at all of the facts and evidence available to her in determining whether the individual made a misrepresentation. She can base her finding on nothing more than her interview with the foreign national, and her impressions from that interview.
If USCIS denies the adjustment application the foreign national has to depart the U.S. or can otherwise be deported. But the problems do not end there.
Fraud/misrepresentation creates a permanent bar.
Our Chinese wife has had her adjustment of status application denied, but her troubles do not end there. Look again at the statutory language above. It asks whether an individual “seeks to procure (or has sought to procure or has procured)” a benefit through misrepresentation. That is, has the person ever engaged in that conduct. Once the person has done so, the ground of inadmissibility permanently applies to her. Let me repeat that: fraud/misrepresentation makes the person permanently inadmissible to the United States.
There is a “waiver” available for someone who has been found inadmissible on the basis of fraud/misrepresentation. A waiver is essentially asking for a type of pardon. To win a waiver for fraud the person will have to show that it causes “extreme hardship” to her U.S. citizen spouse (or parent) if she is barred from the U.S. But almost no one should count on winning a waiver case – in other words, this definitely should not be viewed as simply a Plan B. To win a waiver a person needs very strong facts, such as a spouse who is medically dependent on the foreign national. An “average” couple will not receive a waiver.
When I explain the problem of immigrant intent and adjustment of status there are several objections I hear often. Let’s look at some.
(1) My friend said…
Your friend told you that it was fine to enter the U.S. on a visitor’s visa or ESTA and then file for adjustment. A couple questions for you. Do you turn to your friend for medical advise? If not, why would you take her legal advice? Secondly, when you’re denied entry and sitting in a detention facility at the airport, is your friend going to be there to help you out? I don’t mean to be negative here, but seriously – unless your friend has studied immigration law you are making a major gamble taking her advice. For perspective, most lawyers won’t advise clients on immigration issues unless it is the only area in which they practice. It is a highly specialized field, and so it really seems a bit silly to take the advice of someone who doesn’t study the topic.
(2) The Department of State/USCIS told me…
I wish I had a dime for every time I heard about USCIS giving terrible, life-destroying legal advice. As you may have found out, USCIS has a national customer service 1-800 number, and sometimes you can get through to an agent who will offer her thoughts about immigration law in the U.S. The problem is that they have zero –zero – personal accountability to you for the advice they give. Similar to your friend’s advice, how is it going to work if you are denied entry at the airport. Sure, you can say, “but the customer service person told me XYZ!” First of all, CBP is a completely different federal agency from USCIS. Likewise, both are separate from the Department of State. They are governed by different regulations, and they – frankly – don’t care what you were told by a different agency. Moreover, it doesn’t really matter for their purposes if some other federal employee gave you lousy advice. If you get pulled over for speeding, you can’t just tell the officer, “but another police officer told me the speed limit was 45!” Too bad, the speed limit is 25 and you’re getting a ticket. The law is the law, and like it or not, the government agencies don’t take responsibility for explaining it to you.
(3) But my friend did it!
You’ve talked to your friends, and a couple of them did exactly what you’re hoping to do – so it’s okay… right? First, were they really in the same situation? Or maybe the facts were slightly different in a way neither of you understand. Maybe the law was different. Maybe they don’t even quite understand what legal channel they went through.
Second, and more importantly – okay, maybe your friend got away with breaking the law, so what? I have a friend who used to steal fried chicken every time he went to the grocery store. He would order some chicken strips, then eat them while he shopped. Never got caught. Does this mean I should do the same? Maybe I get away with it, too. Or maybe I get caught. Either way I’m breaking the law.
If I can’t adjust status, what should I do?
Do not panic. Just because you can’t seek adjustment of status does not mean there is no route to becoming a U.S. resident. You just need a different strategy. For both spouses and fiancé(e)s of U.S. citizens there is a process for seeking a visa while outside the U.S. You can learn more about those processes here. The downside of this tends to be that the couple will be separated for some months if the U.S. citizen needs to relocate to the U.S. But look at the big picture here. If you truly care about being united with your spouse in the U.S., pursue the correct strategy that is the appropriate route to making that a reality. If you pursue the adjustment route because it looks a bit quicker and easier, you risk destroying your chances to live together in the United States.
Wait, but doesn’t your law firm do ESTA/B-2 adjustments?
Yes, we represent B-2 and ESTA clients in adjustment cases all the time. But in all our cases one thing has to always be true: the foreign national did not make the decision to seek residency until after she came to the United States. If we think the person entered with preformed immigrant intent we will not take the case, period. What do these scenarios look like? Here are some examples:
- Canadian girlfriend enters the U.S. to see her U.S. citizen boyfriend. She had no idea he was going to propose, but he pops the question. Then they come to us to look at their options. Since she had never considered residency until after he proposed, there is no preformed intent.
- A young man comes from Ireland to go skateboarding with his friends. He meets a U.S. citizen, they fall in love and get engaged. They had never even met before his arrival, and he entered with plans for only a short trip, so there is no preformed intent.
- An Australian businessman has been dating a U.S. citizen flight attendant. They’ve traveled extensively and during a trip to the U.S. decide they do want to get marred and so they come to our law firm. Since there were no plans to pursue residency at the time he entered the U.S., the client is eligible to move forward with adjustment.
Bottom line: do the right thing for the long term
Most of our clients value their family more than anything in the world. If you do as well, make sure you’re doing the immigration process right. Don’t go after adjustment just because it seems like it will be easy. Take the time to understand the proper strategy for securing your goal. If you would like an individualized consultation (schedule here) we are happy to meet with you; we work remotely with clients all over the world.
Photo credit: satit_srihin.