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Be Aware of Preconceived Intent if You are Entering the U.S. as a Tourist and you have the Intention of Filing a Family-Based Immigrant Petition

Under U.S. Immigration law, if you are an "immediate relative" of a U.S. citizen, you can become a U.S. permanent resident very quickly if your U.S. citizen relative files a petition on your behalf. For example, the spouse of a U.S. citizen, an unmarried child of a U.S. citizen under the age of 21, and the parent of a U.S. citizen (provided the U.S. citizen is at least 21 years old) are all "immediate relatives" and they can file a petition to adjust the status of their immediate relative and a "Green Card" will be immediately available.

However, any such immediate relative must be aware of the "preconceived intent" rules that apply to anyone filing a residency petition soon after entering the U.S. For example, let's say you are a U.S. citizen and you would like to petition for your parent who lives in Venezuela to come live in the U.S. Your parent has a tourist visa and decides to come to the U.S. so that you can file a petition for residency, and he/she can adjust status. Under the preconceived intent rules, you should not file a petition for residency for at least 60 days after your parent has entered the United States. That's because someone entering with a B1/B2 tourist visa must have singular non-immigrant intent, which means that he or she does not have the intention to immigrate to the U.S. Under the preconceived intent rules, someone who files for a Green Card within 30 days of having entered the U.S. is assumed to have misrepresented his or her intention in entering the U.S. There is no presumption if the person files for an adjustment of status more than 30 days but less than 60 days after entry to the U.S., although an immigration officer can find a basis that a misrepresentation occurred from the facts of the case. If the petition is filed more than 60 days after entering the U.S., then there is basis for finding any misrepresentation.

These rules are important because if an immigration officer finds that someone misrepresented the reason for his or her entry to the U.S., that person could be found inadmissible under Section 212(a)(6)(C(i) of the Immigration and Nationality Act.

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If you have any questions regarding immigration law or the process for immigrating to the U.S., please contact Santiago J. Padilla at 1-800-483-7197.

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