After an interesting debate this week, between immigration attorneys on Facebook, I’ve learned that I am a lot more risk-averse than others.
This stems from a question an attorney posted, asking whether it is a good idea to file for Adjustment of Status (Permanent Residence) for parents of a US citizen who arrived in the US as visitors. The problem is not the filing, but the timing of the filing. These clients wanted to file a week after their arrival in the US.
The issue here is whether a USCIS officer deciding their case will assume they had “Immigrant Intent” when they came in as “Visitors”, and whether the officer can charge them with “fraud or misrepresentation”.
For the last 15 years of practice, I have always abided by “30/60/90 day rule”. In essence, we don’t file any Permanent Residence applications within 90 days of a visitor’s arrival in the US, unless there is a VERY good reason, ex. expiring status. This is what most immigration attorneys did.
If a USCIS officer finds “Fraud or Misrepresentation”, the person applying could be permanently barred from entering the US again.
Why risk a finding like this? Why not wait? Why try to fight USCIS, when you could have just waited a few weeks? I believe you are doing clients a disservice when you don’t advise them to wait. Isn’t that our job as attorneys, to give the best advice?
Many of those arguing for not waiting the 90 days cite a case “Matter of Cavazos” from 1980, where the BIA decided that notwithstanding preconceived intent, adjustment of status should ordinarily be granted for immediate relatives absent other negative factors.
While this is true, a USCIS officer could find other “negative factors” when they grill your client at their interview.
My advice to young immigration attorneys out there, wait the 90 days, and don’t get pushed around by eager clients. If they don’t want to wait, and you still take on the case, make it clear in your agreements that they have been advised of the risk, and that you are not responsible if it all goes wrong.
