If your foreign spouse enters the United States as a non-immigrant, or through Visa Waiver Program, and then seeks to adjust status, he or she may encounter problems because of the so-called “preconceived intent”.
“Preconceived intent” means that the applicant intended to immigrate to the United States, and misrepresented his or her intent to immigration authorities in order to get a non-immigrant visa or enter the U.S. as Visa Waiver entrant.
History of “Preconceived Intent” Rule
30/60 Rule: Under the Foreign Affairs Manual (FAM), Department of State had a narrow framework for determining when there is immigrant versus nonimmigrant intent. Under these rules, for example, if a foreign national filed for adjustment of status within 30 days of entry on a B-2 visa, there would be a presumption of preconceived intent. If between 30 and 60 days, the presumption would become rebuttable, meaning that it could be overcome by evidence to the contrary. If after 60 days, there would be no presumption of preconceived intent. The 30/60-day rule was a Department of State rule, and there is no specific USCIS rule that is similar; however, USCIS often relied on this general guideline in making its own determinations, as a matter of discretion, in adjustment application adjudications.
90-Day Rule: In September 2017, the Trump administration came up with a 90-day rule, which basically gets rid of 30/60 and applies a plain 90-day rule, saying that if a non-immigrant’s actions within 90 days of their entry into the US are inconsistent with the original stated purpose, then there should be a presumption of willful misrepresentation.
However, there is favorable court precedent and subsequent USCIS policy manual stating that immediate relatives (such as children, spouses or parents) of U.S. citizens are exempt from the “preconceived intent” consideration. For example, in Matter of Cavazos (BIA 1980), the Board of Immigration Appeals (BIA) reversed an immigration judge who denied adjustment to the spouse of a US Citizen solely on the basis of preconceived immigrant intent. There, the BIA held that in the case of immediate relatives seeking a grant of adjustment of status, the regulations essentially negated “preconceived intent as an adverse factor in a meritorious case.” In other words, if the only adverse factor is a preconceived intent, immediate relative adjustment applications should be granted.
It is important to note that there are some issues relating to the decisions in Matter of Cavazos and the case following it, Matter of Ibrahim (BIA 1981). In Matter of Ibrahim, the BIA held that in the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the US as a nonimmigrant with a preconceived intention to remain. However, the BIA also held that the benefits of Matter of Cavazos are limited to immediate relatives, and an application for adjustment of status by a preference immigrant who entered the US as a nonimmigrant with a preconceived intention to remain was properly denied in the exercise of discretion. Nowadays, relying on Matter of Cavazos and Matter of Ibrahim can be tricky, because:
1) these cases are quite old, and often USCIS examiners are not aware of their existence; and
2) there have been a number of recent cases—involving Visa Waiver entrants and other non-immigrants—in which preconceived intent was one of several factors considered in denying adjustment, and the consequences were quite severe.
Even though the preconceived intent rule generally does not apply to the US Citizens’ immediate relatives, there still can be repercussions for misrepresenting their intentions to officials or admitting at the interview that they had preconceived intent. As mentioned above, the consequences could be quite severe. For example, a visa waiver entrant whose adjustment is denied based on preconceived intent in conjunction with other factors is unable to appeal or challenge that denial as a result of entering under the Visa Waiver Program, and if that person is subject to the re-entry bars under INA §212(a)(9)(B) as a result of a visa overstay, the person would not be eligible to consular process without a waiver.
In regard to the denials, there have been no recent cases in which preconceived intent was the sole basis for the denial of the adjustment application—the denial always found other culpable conduct. In one case for example, the denial was based on a combination of preconceived intent and alien smuggling, and so the BIA’s departure from its usual policy and case law was justified (Mamoka v. INS, 1995; Matter of Patel, 1988, citing Matter of Lasike, 1980). In Matter of Patel, the deportation was upheld where alien refused to depart after denial of adjustment of status to special immigrant minister because none of his documentary evidence established that he had been carrying on vocation of minister of a religious denomination for two years prior to denial of application; discretionary denial of adjustment based on preconceived intent was also upheld where alien applied for “ministerial recognition” only 11 days after entry with tourist visa and five months later obtained “Christian Worker’s Certificate” entitling him to conduct religious services, letter of recommendation for ministry overseas predated his entry, and he started employment immediately upon entry but falsely stated in his request for extension of tourist visa that his intent was only to continue in his visitor status.
Therefore, most USCIS field offices do not raise the preconceived intent issue when it comes to immediate relatives of U.S. citizens, and most adjustment applications filed by spouses of U.S. citizens are granted, provided that if their only adverse factor is preconceived intent, and not a combination of preconceived intent and other culpable conduct.
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