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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28192
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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I'm currenty in active duty army landed on orders. My

Customer Question

Hi, I'm currenty in active duty army landed on orders. My wife is a foreign spouse. We submitted her I-130 In frankfurt Germany Consualte. and got the approval letter, But the military added her on my orders to my next permanent Duty station, She is already
in the states on a Esta Visa. What can we do for her to stay at my Duty station Location while her visa is processing? What are steps we need to do so that we do not have to buy her a ticket back to Germany? Is there a possible way to also send NVC that she
was on orders to come to the next duty station and if we could just submit and Adjustment of Status so that she is able to stay?
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Judith replied 1 year ago.

Hello my name is ***** ***** I am delighted to answer your questions today. I have 35 years experience as an immigration lawyer.

Your wife can come here on the ESTA as a visitor intending to return home and while here change her mind and stay and file for adjustment of status. But clearly that is not the care because she came here on orders so it was with the intent to immigrate that she entered. That can create an issue of fraud and misrepresentation at her entry because she had already had her immigrant petition approved when she came here.

Matter of Cavazos, 17 I&N Dec.215 (BIA 1980)

http://www.justice.gov/sites/default/files/eoir/legacy/2012/08/17/2750.pdf

That case held that the presumption of immigrant intent does not apply to immediate relatives if adjust ment is filed within 60 days.

However, that does not mean that the USCIS cannot look at other facts and they have many resources available to investigate whether there was a fraud or misrepresentation to the CBP when questioned at entry. So for example, if the CPB officer asked your father why he was coming and if he was going back home and he answered "yes" but had abandoned all his ties to his home country then the USCIS could consider his statements as being a misrepresentation or fraudulent. So the adjustment could be denied on that basis and not on the immigrant intent issue.

I don't see under her situation with having had the I-130 filed and approved in Germany to avoid the presumption of misrepresentation when she entered saying she was just coming for a visit.

They don't give her a break as a military spouse.

I see this is the first time you are using JA and I am eager to make this a positive experience for you. Please ask follow-up questions if my answer is not clear.
Of course, I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Customer: replied 1 year ago.
what do i Do since she is already here. For visiting?
Customer: replied 1 year ago.
Could i still file and Adjustment of Status for here and see if it gets approved? Or what can i do?
Customer: replied 1 year ago.
how do i do it? Please Give Descriptive ways.
Expert:  Judith replied 1 year ago.

As a lawyer I cannot tell you she can file for adjustment of status because when she entered she knew she had the intent to stay.

It makes her guilty of lying at the port of entry when she said she was just coming in to visit and had a return ticket to go home.

She knew then that was not true and she intended to remain.

She needs to complete her immigrant visa processing in Germany.

Judith

Customer: replied 1 year ago.
ok
Expert:  Judith replied 1 year ago.

Sorry, but I have to give an honest answer. She could have waited to follow you on orders until her processing was complete. You and she made a choice not to do that.

Judith