Preconceived Intent

At the time of making entry into the United States, if a nonimmigrant has preconceived intent to remain permanently in the U.S. and files application of adjustment of status to become a permanent resident, should the application be denied because of the preconceived intent?

The Board of Immigration Appeal said no in the leading case of the Matter of Cavazos on this subject. Cavazos was ordered deportation because he overstayed his authorized period of stay. Nonetheless, since he married a U.S. citizen, he filed his green card application and applied for adjustment of status. In the proceeding of Immigration Court, Cavazos was denied his adjustment of status application. The Immigration Court reasoned that Cavazos had a preconceived intent to remain in the United States permanently while he entered the U.S.

The Board of Immigration Appeal reversed Immigration Court’s decision. The Board stated that “Notwithstanding evidence establishing an intent on the part of a nonimmigrant to circumvent the normal visa process, i.e., a preconceived intent to remain permanently at the time of entry as a nonimmigrant, an adjustment application should not be denied in the exercise of discretion were substantial equities are present in the case.” In Cavazos’s case, substantial equities were considered to exist if the facts are such that Cavazos would be granted voluntary departure until he is invited to appear at a United States consulate to apply for an immigrant visa.

The Board found that significant equities were present as Cavazos’s wife and child are U.S. citizens. The equities found are to be used to weight against adverse factors in the adjustment application. As a result, the equities were sufficient to overcome the only negative factor which was the preconceived intent.