If you are a fiancé or a spouse of a U.S. citizen, or a lawful permanent resident, you probably wonder why you cannot enter the U.S. on a tourist visa or enter via the visa waiver program and live happily ever after. You will likely spend an extended period outside the United States while your spouse or fiancé is living in the U.S. as you wait for the proper visa. You could feel tempted to use a tourist visa, commonly known as a B-2 visitor visa, because it can be obtained quickly from the U.S. consulate. However, the tourist visa would be unnecessary if you are from a particular country because you can enter the U.S. solely on your passport, according to the visa waiver program.
It seems easier to enter the United States on a tourist visa or a VWP. When you are here, you can then apply for a marriage-based green card. You should avoid doing this for two reasons:
You Could Face Fraud Charges For Using A Tourist While You Intend To Stay Permanently In The Us
You will have committed visa fraud if you pose as a tourist using the VWP or a tourist visa to remain in the United States indefinitely. Tourist or visitor visa or any other temporary visa should only be used by people who intend to stay in the U.S. temporarily. These visas are not for people who intend to remain permanently in the United States. Furthermore, if you use a tourist visa and the USCIS (the United States Citizenship and Immigration Services) decides to take action, you could lose your right to obtain other visas as well.
For example, you could lose the right to a marriage-based green card. So why does it matter if you enter the United States on a tourist visa, then seek a marriage-based green card?
It is not guaranteed that you will succeed in acquiring a marriage-based green card. Therefore, if you are already in the United States and fail to obtain a marriage-based green card, you will remain in the U.S. illegally. However, this does not mean anyone who enters the United States on a tourist visa cannot acquire a marriage-based green card. Certain waivers and exceptions are available. You can always take advantage of them.
Non-Citizens Whose Initial Intention While Entering The U.S. Was A Temporary Stay
You can be excused if, during your first entry into the United States, you had not decided to marry or to obtain a marriage-based green card. Consider the following examples:
Example One
You enter the U.S. on a visa waiver program. One week after entering the U.S., you marry your fiancé, a U.S. citizen. One month after the wedding, you apply for a marriage-based green card. During the green card interview, the interviewing officer asks you about when you decided to get married. In all the excitement, you state that you proposed to your fiancé on the phone, and she agreed to marry you. When she said yes, you were so happy that you packed your bags and got on the flight to get married in the U.S. This answer would betray you. The immigration officer will realize that you committed visa fraud by entering the U.S. on the VWP program, yet you intend to get married and remain in the United States.
Example Two
Let's say you enter the United States as a tourist, and three months later, you marry a U.S. citizen. After a month, you apply for a marriage-based green card. During the green card interview, the interviewing officer asked about your intention when you entered the United States. You explain that you and your fiancé have been in a long-distance relationship. At some point, you decided to travel to the U.S. to visit your fiancé. Upon arriving in the U.S., you realize that you are indeed in love and would love to marry your fiancé. This answer is not incriminating. However, the fact that you formed the intention to marry your fiancé while in the United States and the fact you waited for three months to marry her shows that you did not travel to the U.S. solely to get married.
Usually, the USCIS will be suspicious if you travel to the U.S. and get married within 90 days of entering the country. You will have difficulty proving to the USCIS that your intention was not to get married when you acquired the tourist visa. Many people have succeeded in convincing the interviewing officer that they came to the United States on a temporary visa, planning a short stay but decided to get married after arrival. However, you will need a lawyer’s help to succeed in making this argument.
When The USCIS Waives Your Misuse Of Tourist Visa
In some cases, the USCIS could forgive your misuse of the tourist visa. For example, if the USCIS maintains that you have committed visa fraud, you can request it to forgive your error. However, obtaining this waiver or forgiveness is not guaranteed. It requires the intervention of an experienced immigration attorney.
The USCIS Will Not Allow You To Remain In The US On A Tourist Visa Until a Green Card is Available
The problem with entering the United States on a tourist visa is that if your spouse or fiancé is not a resident of the United States but a permanent resident, you will be on a waiting list. Many people end up on the waiting list due to the limits on the annual visa allotments. You will only be eligible for a green card or permanent residence when a visa number is available. This wait could be extended to months or even years. The waiting period will depend on your priority date. This was when your fiancé or spouse submitted the form 1-130 to the USCIS for you.
What happens if you enter the United States on a tourist visa and the permitted period under your visa type runs out?
It means that if the allowed stay as indicated on your form 1-94 runs out, you will be in the U.S. illegally. During the waiting period, you will risk deportation for being in the United States illegally.
Whether Regulations Prohibit Getting Married to a US Citizen or Permanent Resident While on a Tourist Visa
The answer is yes if you are wondering whether you can get married on a tourist visa. The law does not prohibit people who are in the United States as visitors from getting married. The time when you run into trouble is if you enter the United States with the sole intention of getting married. You will be guilty of visa fraud if you come to the U.S. to get married and later adjust your status.
The United States Immigration officers do not take visa fraud lightly. However, you can still adjust your status provided you prove that you came into the U.S. with an honest visitor intention and decided to get married or stay permanently after your entry. Confirming that you did not have a preconceived intent of getting married while entering the United States is difficult but not impossible.
You should consider the following factors before you get married while on a visa waiver program or a tourist visa:
Your Marriage Should Be In Good Faith
To successfully obtain a marriage-based green card, you must convince the immigration officers that you entered the marriage in good faith. Entering a good faith marriage means you did not get married to acquire immigration benefits. If the immigration officers feel that you only got married to obtain residency, they could initiate removal or deportation proceedings. With the help of your immigration lawyer, you can submit documents and evidence indicating that your marriage is in good faith.
Observe The 30/60 Rule
Consular officers use the 30/60-day rule to determine whether someone has committed visa fraud. The consular officers will assume that you had a preconceived intent to commit visa fraud if you apply for status adjustment or any other change in your nonimmigrant status within 30 to 60 days of entering the United States. The Department of State created the 30/60-day rule to assist consular officers in deciding on green card applications. The USCIS has, in some ways, adopted the 30/60 rule in adjudicating Adjustment of Status applications. With this rule in place, applying for a marriage-based green card is risky within 60 days of entering the United States. It is even riskier to apply for a green card within 30 days of being in the U.S.
If you apply for an adjustment of status or change of status within 30 days, the consular officers will automatically assume that you misrepresented your intentions at the visa interview. If you apply for a change or adjustment of status within 60 days, the officers will not assume a misrepresentation. However, you will still have a burden to prove that you did not misrepresent your intentions. After 60 days, there will be no assumption of misrepresentation. If the consular officers allege that you misrepresented your intentions, it will be upon the government to prove this misrepresentation.
If you commit visa fraud, you could be permanently ineligible to receive immigration benefits or enter the U.S. on any visa. Therefore, before you get married and apply for an adjustment of status, it is crucial to understand this rule and its implications.
The Timing Of Your Wedding
The timing of your wedding could also serve as a red flag and make the USCIS suspicious while reviewing your application for change or adjustment of status. For example, if you marry too soon after entering the United States, the consular officers could question your intentions even if you apply for a green card after 60 days. However, if you come to the U.S. with the intent to get married and then return to your home country, the wedding timing will be irrelevant to your case.
If The USCIS Denies Your Adjustment Of Status
After getting married, the adjustment of status is not guaranteed. Therefore, you and your spouse should be ready for any eventuality. If you came to the U.S. on a tourist visa and the USCIS denies your adjustment of status, the USCIS could refer your case to the Immigration & Customs Enforcement for initiation of the deportation process. If you entered the United States on a Visa Waiver Program, you would not have the right to argue your case before an immigration judge.
There are several reasons for the denial of an adjustment of status. The consular could deny your application after establishing that your marriage was not Bonafide or in good faith. The adjustment could also be rejected if it is evident that you entered the United States with the intent to marry and remain there. Other grounds for denial of a marriage-based visa include your criminal record, health status, or previous sanctions.
You Are Under The Watch Of Border Protection Officers
When you come to the U.S. on a tourist visa, the border protection officers at the port-of-entry will ask about the purpose of your visit or travel to the United States. You should not lie to the officers. Instead, you should be honest and answer all the questions appropriately. For example, if you state that you are coming to tour the U.S., but the officers later learn that the purpose of your travel is to get married, you should be ready for inspection and possibly immediate return to your home country. On the other hand, if the border protection officers believe that you are not a tourist and do not intend to leave before your visa expires, you could be deported.
You Cannot Leave The United States Immediately After Getting Married
After getting married and applying for an adjustment of your immigration status, you will not be able to leave the United States until you apply for and receive a Green Card or an Advance Parole. If you leave the country before receiving these two documents, you will not manage to re-enter the United States. In addition, the status of your application will be deemed denied or abandoned. As a result, you and your spouse will have to start the immigration process from scratch. If you have a pending adjustment of status application and you do not obtain an Advance Parole before you leave the U.S., the USCIS will assume that you have abandoned the application and will not allow you to re-enter the United States.
Entering The US On A Tourist Visa, Getting Married, And Returning Home
Perhaps you are wondering if you can come to the U.S. on a tourist visa and get married but return to your home country after the wedding. The law is not against getting married while on a tourist visa or a visa waiver program. You can get married and go home before your visa expires. However, you must have strong evidence to prove to the CBP officer that you will go back home even after getting married. Some documents you can present as evidence include a return ticket, a letter from your employer, a lease agreement, or evidence that your U.S. spouse will return to your home country with you.
You Should Not Take Visa Fraud Lightly
You should never take visa fraud lightly. You should also not assume that you can easily fool the United States immigration officers. If you violate immigration laws, you could face visa fraud charges. If it is evident that you have committed visa fraud, you will face severe consequences. For example, you will have to go back to your home country. You could also receive a permanent ban on re-entering the United States. This lifetime ban is tough to overcome.
The USCIS has strict laws on people who come to the U.S. on a tourist visa, intending to get married and remain here. Not every individual who gets married on a tourist visa succeeds in getting an adjustment of their status. You need to seek the help of an aggressive immigration attorney to help you sail through the process.
Find An Experienced Immigration Attorney Near Me
Marriage-based green card applications, like other immigration processes, are stressful. You could be nervous and stressed during the interview. Having a person who understands the law by your side can ease the process. In most cases, the attorney does not engage in the interview. However, the attorney's presence makes you feel more comfortable throughout the interview and increases your chances of success. An attorney provides legal counsel and protects you through all the stages of the green card interview. If you recently got married and need a marriage-based green card, we invite you to contact the California Immigration Attorney. We have successfully helped clients apply for a marriage-based green card for many years. You too, could benefit from our legal services. Contact us at 424-789-8809 to speak to one of our attorneys.