News & Insights

Legal Issues Addressed

• Can a nonimmigrant visa applicant be considered bona fide despite a prior expressed intent to immigrate?
• What requirements must be met for adjustment of status under Section 245 of the Immigration and Nationality Act?

Facts and Circumstances

The applicant, a Bolivian national, entered the United States on a B-2 nonimmigrant visitor visa in 1955, intending to assist his brother-in-law in New York and visit his U.S. citizen wife in California. His visa application included discrepancies about his marital status and purpose of travel. Despite these inconsistencies, he was admitted as a nonimmigrant visitor and later remained in the U.S. with his wife.

Previously, the applicant had voluntarily departed the U.S. in 1955 after failing to maintain his prior student visa status. During his brief stay in Mexico, he initially sought an immigrant visa but withdrew that application to expedite his return to the U.S. as a temporary visitor. Upon his return, he filed for adjustment of status to become a permanent resident based on his marriage to a U.S. citizen.

Deportation proceedings were initiated against him for alleged visa fraud and misrepresentation. A U.S. District Court later found no substantial evidence to support the fraud allegations, voiding the deportation order. However, the question of whether he was a bona fide nonimmigrant at entry remained unresolved.

Court’s Decision and Reasoning

The Regional Commissioner sustained the applicant’s appeal, emphasizing the following:

• Bona Fide Nonimmigrant Status:
  • The court acknowledged that a prior desire to immigrate does not automatically invalidate a subsequent nonimmigrant visa application. The applicant’s stated purpose of temporarily assisting his brother-in-law and visiting his wife was consistent with nonimmigrant intent.
  • The applicant’s testimony about his intentions at entry was credible and unrefuted, distinguishing between temporary desire and permanent intent to stay.
• Adjustment of Status Requirements:
  • The applicant met most criteria under Section 245 of the Immigration and Nationality Act, including lawful entry, nonimmigrant status maintenance, admissibility for permanent residence, and eligibility for a nonquota visa through marriage to a U.S. citizen.
  • The court clarified that nonquota status derived from marriage (Section 101(a)(27)(A)) is distinct from other nonquota classifications and meets adjustment eligibility.
• Good Moral Character:
  • Establishing good moral character for the five years preceding the application was a discretionary requirement linked to the Attorney General’s authority. Allegations in a neighborhood investigation required further review, and the applicant was afforded an opportunity to respond.