Can I Enter the U.S. as a Visitor Then File a Form I-485, Application to Adjust Status?

If you are outside the U.S. and waiting for an immigrant visa appointment at a U.S. Embassy or Consulate, long government processing times can be a major inconvenience.

You may already hold a B1/B2 (visitor for business or pleasure) visa or be eligible to enter the U.S. as a visitor under the Visa Waiver Program using the Electronic System for Travel Authorization (ESTA).

Can you enter the U.S. as a visitor, then become a lawful permanent resident (LPR), i.e., green card holder, by filing with U.S. Citizenship and Immigration Services (USCIS) a Form I-485, Application to Adjust Status, instead of waiting abroad for an immigrant visa appointment?

This article explains that to qualify for admission to the U.S., you must have nonimmigrant intent. So, if you are at a port of entry, a U.S. Customs and Border Protection (CBP) officer may refuse to admit you as a visitor if you intend to file a Form I-485.^[1] Moreover, if you misrepresent your intent to the CBP officer, you may be permanently barred from admission to the U.S. on the grounds of fraud or misrepresentation.^[2] And if you enter the U.S. with preconceived intent to file a Form I-485 you may be denied by USCIS as a matter of discretion.^[3]

At a minimum, if you file a Form I-485 close in time to your arrival as a visitor you should be prepared to show evidence that after arrival new circumstances developed to change your intention from merely visiting the U.S. to applying for permanent residence.

Risk 1. Refusal of Admission for Failure to Prove Nonimmigrant Intent

At a port of entry, U.S. Customs and Border Protection (CBP) may refuse to you if you fail to prove nonimmigrant intent to the officer’s satisfaction. You may be summarily removed, i.e., deported, by a CBP officer with no opportunity for appeal, in which case you would be barred from returning to the U.S. for five years.^[4] Or your visa may be canceled, and you may be allowed to withdraw your application for admission,^[5] returning home immediately but not subject to the five-year bar.

According to the Immigration and Nationality Act, to qualify for admission as a visitor, a person must prove they plan to visit the U.S. just “temporarily” and then return to their home abroad to continue living there. The statute is worded this way: an applicant must have a “residence,” meaning a “principal, actual dwelling place,” ^[6] in a foreign country “which [they have] no intention of abandoning.”^[7] This is sometimes referred to as the nonimmigrant intent requirement.

The term “temporary” isn’t specifically defined by statute. In its ordinary sense, “temporary” means “lasting for a time only; existing or continuing for a limited time.”^[8] There is no set outer limit such as six months or a year.^[9] But for a visitor’s trip to be considered temporary, the applicant must have “specific and realistic” plans for the entire period of the trip.^[10] The period of time projected for the visit must be consistent with the stated purpose of the trip.^[11]

In determining whether a foreign national has an unabandoned foreign residence and is coming to the U.S. temporarily, an officer should consider the totality of the facts, such as^[12]:

1. Family and other compelling relationships (i.e., personal ties) in each country.
2. Whether the applicant is being accompanied by most or all immediate family members, the reason for their accompanying him or her not being reasonably explained.
3. Work and business ties and opportunities in each country.
4. Homes owned or leased in each country.
5. Property ties (e.g., car, other real estate, bank accounts, investments) in each country.
6. Whether the applicant’s financial status is such that he or she may have to obtain employment in the U.S. to defray the expenses of his visit.
7. Social or cultural ties in each country.
8. Prior efforts to establish permanent residence in the U.S., especially where there is evidence the applicant is seeking to avoid quota restrictions. Also, prior visa refusals and U.S. immigration violations.
9. Whether the purpose and itinerary of the U.S. trip are clear and consistent with the desire to keep a principal home abroad.

The statute places the burden of proving nonimmigrant intent on the applicant for a visa or admission to the U.S. as a visitor.^[13]

The applicant’s credibility is crucial. “Indications of possible deception arising from the applicant’s demeanor and/or inconsistencies in the applicant’s story may cause [a CBP] officer not to be satisfied that the applicant” meets the nonimmigrant intent requirement.^[14]

Risk 2. Refusal of Admission for Fraud or Misrepresentation

If you apply for admission as a visitor, you must not misrepresent to CBP the true purpose of your travel to the U.S. This could amount to fraud or misrepresentation. A person 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 … or other immigration] benefit” is permanently inadmissible, i.e., ineligible for admission to the U.S.^[15]

In the below dialogue with a CBP officer, the applicant for admission makes two misrepresentations—regarding the purpose of travel and intended duration of stay—if their true intent is to apply for adjustment of status:

Q: What’s the purpose of your travel?

A: Visit Disneyland.

Q: How long will you stay?

A: Two weeks.

The misrepresentations could be discovered by CBP, such as by a search of the applicant’s luggage, electronic devices, or social media postings, resulting in the discovery of evidence that, for example, the applicant has quit a foreign job, terminated his apartment lease, applied for jobs in the U.S., and engaged a real estate agent in the U.S.

A CBP officer may uncover a misrepresentation by looking for a foreign national’s plans for activities that are inconsistent with B1 or B2 status, such as:^[16]

• Engaging in unauthorized employment
• Enrolling in a course of study at a university
• Taking up residence in the U.S. by, for example:
  • Signing a long-term lease
  • Obtaining a mortgage
  • Signing up for utilities and receiving bills in one’s name
  • Obtaining a local driver’s license
• Starting a business, buying or leasing a vehicle, opening a bank or investment account, or enrolling in long-term U.S. health insurance
• Joining a church, gym, or other club

A CBP officer may also uncover a misrepresentation by looking for ties cut by the foreign national to their prior foreign residence. For example:

• Quitting foreign employment
• Quitting a course of study at a foreign university
• Abandoning a foreign residence, such as:
  • Canceling a lease
  • Selling a home
  • Canceling utilities for a home
  • Moving out of a home
  • Shipping household goods from a foreign residence to the U.S.
• Liquidating assets, such as selling a business, selling a vehicle or terminating a vehicle lease, closing a bank or investment account, or disenrolling from long-term foreign health insurance
• Quitting a church, gym, or other club

Not all such evidence automatically means that the applicant for admission in B1 or B2 status has engaged in fraud or misrepresentation. But the burden of proof is on the applicant to prove admissibility. So, if there is evidence that would “permit a reasonable person to conclude that the applicant may be inadmissible for fraud or willful misrepresentation, then the applicant has not successfully met the burden of proof.”^[17] In these cases, CBP considers the applicant inadmissible for fraud or willful misrepresentation, unless the applicant is able to successfully rebut the officer’s inadmissibility finding.^[18]

Risk 3. Denial of the I-485 for Fraud or Misrepresentation

Even if the applicant is admitted, fraud or misrepresentation made to CBP at the port of entry could subsequently be discovered by USCIS during an I-485 interview, leading to denial of the I-485 and permanent inadmissibility.

Risk 4. Denial of the I-485 for Preconceived Intent

Adjustment is a discretionary benefit,^[19] meaning that an applicant who meets the eligibility requirements may be granted the benefit as a matter of administrative grace but is not entitled to adjustment. Even if an applicant is statutorily eligible, USCIS may deny the application based upon a determination that discretion should not be favorably exercised.^[20]

Absent compelling negative factors, an officer should exercise favorable discretion and approve the application.^[21] If the officer finds negative factors, the officer must weigh all the positive and negative factors. The list of issues and factors may include, but is not limited to:^[22]

Issue	Positive Factors	Negative Factors
Eligibility Requirements	Meeting the eligibility requirements for adjustment of status.	Not meeting the eligibility requirements may still be considered as part of a discretionary analysis.
Family and Community Ties	Family ties to the United States and the closeness of the underlying relationships. Hardship to the applicant or close relatives if the adjustment application is denied. Length of lawful residence in the United States, status held and conduct during that residence, particularly if the applicant began his or her residency at a young age.	Absence of close family, community, and residence ties.
Immigration Status and History	Compliance with immigration laws and the conditions of any immigration status held. Approved humanitarian-based immigrant or nonimmigrant petition, waiver of inadmissibility, or other form of relief and the underlying humanitarian, hardship, or other factors that resulted in the approval.	Violations of immigration laws and the conditions of any immigration status held. Current or previous instances of fraud or false testimony in dealings with USCIS or any government agency. Unexecuted exclusion, deportation, or removal orders.
Business, Employment, and Skills	Property, investment, or business ties in the United States. Employment history, including type, length, and stability of the employment. Education, specialized skills, and training obtained from an educational institution in the United States relevant to current or prospective employment and earning potential in the United States.	History of unemployment or underemployment. Unauthorized employment in the United States. Employment or income from illegal activity or sources, including, but not limited to, income gained illegally from drug sales, illegal gambling, prostitution, or alien smuggling.
Community Standing and Moral Character	Respect for law and order, and good moral character (in the United States and abroad) demonstrated by a lack of a criminal record and evidence of good standing in the community. Honorable service in the U.S. armed forces or other evidence of value and service to the community. Compliance with tax laws. Current or past cooperation with law enforcement authorities. Demonstration of reformed or rehabilitated criminal conduct, where applicable. Community service beyond any imposed by the courts.	Moral depravity or criminal tendencies (in the United States and abroad) reflected by a single serious crime or an active or long criminal record, including the nature, seriousness, and recent occurrence of criminal violations. Lack of reformation of character or rehabilitation. Public safety or national security concerns. Failure to meet tax obligations. Failure to pay child support. Failure to comply with any applicable civil court orders.
Other	Absence of significant undesirable or negative factors and other indicators of good moral character in the United States and abroad.	Other indicators adversely reflecting the applicant’s character and undesirability as an LPR of this country.

One negative discretionary factor that an officer adjudicating a Form I-485 should consider is whether the applicant entered the U.S. in B1 or B2 status with “preconceived intent” to immigrate. However, in an adjustment application where preconceived intent is the only negative discretionary factor and the applicant is the immediate relative (i.e., spouse, parent, or unmarried child under age 21) of a U.S. citizen, a positive factor, the applicant merits a favorable exercise of discretion.^[23]

For example, in Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980), the issue presented was whether the immigration judge had erred in denying adjustment of status as a matter of discretion. The respondent had been admitted as a nonimmigrant visitor for pleasure with a border crossing card. The same day, he married a woman he had long known. Before his authorized stay expired, he applied for adjustment of status. The Board of Immigration Appeals assumed for purposes of argument that the respondent had a preconceived intent to immigrate. However, the Board held that the judge had erred in denying adjustment of status because the preconceived intent, which was the only negative factor, was outweighed by the positive factor that he was married to a U.S. citizen. Notably, the respondent was not charged with any fraud or misrepresentation.

Risk 5. Subsequent Visa Refusal for Fraud or Misrepresentation

If an individual has engaged in activities inconsistent with their B1/B2 status within 90 days after a visa application and/or application for admission to the U.S. then in the future needs to apply for another visa, a consular officer may presume that the applicant made willful misrepresentation (i.e., “may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of their true intentions in seeking a visa or admission to the United States”). This rule is referred to as the State Department’s “90-day rule.”

Under the 90-day rule, the consular officer must provide the applicant with the opportunity to rebut the presumption of misrepresentation by verbally presenting the applicant with the officer’s factual findings related to the misrepresentations. The burden of proof falls on the applicant to rebut an officer’s finding of a material misrepresentation.

In light of the 90-day rule, it may be wise to wait more than 90 days after admission to take any action, including filing a Form I-485, that could be perceived as inconsistent with the terms of admission as a visitor.

Waivers of Inadmissibility for Fraud or Misrepresentation

Once an immigration official has concluded that an individual is inadmissible for fraud or misrepresentation, that ineligibility is permanent.^[24] There are, however, narrow grounds under which the government may waive inadmissibility:

• Fraud or misrepresentation waiver for an individual refused an immigrant visa or filing a Form I-485, under INA § 212(i)
• Nonimmigrant visa waiver under INA § 212(d)(3)

For more about these waivers, see Common Waivers of Inadmissibility – Chodorow Law Offices (lawandborder.com).

Footnotes

1. 9 FAM 401.1-3(C). ↑
2. INA § 212(a)(6)(C). ↑
3. Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980). ↑
4. INA § 235(b)(1). ↑
5. 8 C.F.R. § 235.4. ↑
6. INA § 101(a)(33). ↑
7. INA § 101(a)(15)(B). ↑
8. Webster’s Third New International Dictionary 2353 (1993), cited in John P. Elwood, Dep’y Ass’t Atty. Gen., Memorandum Opinion for the Acting General Counsel, DHS (Dec. 18, 2008), AILA Infonet Doc. # 09022664 (Feb. 26, 2009). ↑
9. See John P. Elwood, Dep’y Ass’t Atty. Gen., Memorandum Opinion for the Acting General Counsel, DHS at 3 n.3 (Dec. 18, 2008), AILA Infonet Doc. # 09022664 (Feb. 26, 2009) (citing various federal statutes defining temporary as meaning up to three years). ↑

10. 9 FAM 402.2-2(D). ↑

11. Id. ↑

12. Id.; 1950 Legislative History of the INA at 52. ↑

13. INA § 214(b). ↑

14. DOS Cable 274068, INA 214(b), Basis for Refusal Not Equivalent to Inadmissibility or Immigrant Intent, Dec. 28, 2004. ↑

15. INA § 212(a)(6)(C). ↑

16. See 9 FAM 302.9-4(B)(3)(g). ↑

17. 8 USCIS-PM J.3(A)(2). ↑

18. See Id. ↑

19. INA § 245(a). ↑

20. See Ka Fung Chan v. INS, 634 F.2d 248 (5th Cir. 1981). ↑

21. 7 USCIS-PM A(9)(B)(2). See Matter of Arai, 13 I. & N. Dec. 494 (BIA 1970); Matter of Lam, 16 I. & N. Dec. 432 (BIA 1978). ↑

22. 7 USCIS-PM A(10)(B)(2) (internal citations omitted). ↑

23. In Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980); Matter of Ibrahim, 18 I. & N. Dec. 55 (BIA 1981) (The benefits of Matter of Cavazos, supra, are limited to immediate relatives, and an application for adjustment of status by a fifth-preference immigrant who entered the U.S. as a nonimmigrant with a preconceived intention to remain is properly denied in the exercise of discretion.). ↑

24. INA § 212(a)(6)(C). ↑