Note: Please see legal disclaimer at bottom of this file. ************************************************************************ Marrying on a tourist visa
Q: I am in the U.S. as a tourist. Can I marry my U.S. Citizen boyfriend/ girlfriend and adjust my status to that of a permanent resident (green card holder) without leaving the U.S.?
A: Generally, the answer is yes.
Q: But what is the K-1 fiance visa, or I-130 spousal visa for? Don't I need one of those? A: Those visas are designed for aliens who are NOT in the U.S., who desire to enter the U.S. as fiances or spouses of U.S. Citizens. They are usually NOT necessary, if the alien is already in the U.S. as a tourist.
Q: I entered as a tourist, but not with a tourist visa. I entered under the VWPP. Can I still marry, stay, and Adjust Status?
A: Yes. Although in general, VWPP entrants cannot change or adjust status, a specific exception is made for Immediate Relatives (including spouses) of U.S. Citizens. See the I-485 form.
Q: I entered as a tourist from Canada with no documentation because I am a Canadian citizen. Can I still marry, stay, and AOS?
A: Yes. Canadians who enter without a visa may still AOS without having to submit the I-94 or I-94W form normally required from other aliens who must enter with a visa or under the VWPP.
Q: I entered as a tourist but have overstayed my visa. Can I still marry, stay, and AOS? A: Yes. Immediate Relatives of U.S. Citizens are permitted to AOS even if they overstayed their original entry, or did not maintain their original status. It does not matter if the overstay was for years, as long as the alien can demonstrate that they entered the U.S. legally by submitting their original I-94 or I-94W form (exception made for Canadians, of course).
Q: What if I lost my original I-94 or I-94W form? Or I never got one?
A: A replacement can be obtained by filing the I-102 form.
Q: I entered the U.S. not as a tourist, but as a student (F) or a worker (H,L,TN) or other visa. Can I still marry, stay, and AOS?
A: With a few exceptions, yes. As long as you entered the U.S. LEGALLY, you may still AOS, regardless of the length of time that has passed since your original entry. Your I-94 form proves your legal entry.
Q: What are those "few exceptions"?
A: Some of them include: entering under a C or D crewman's visa, as TWOV (transit), with a J visa if subject to the 2 year HRR requirement, or with a K-1 fiance visa, but you did not marry the person who petitioned you.
Q: I entered the U.S. by sneaking across the border (EWI - Entered Without Inspection). If I marry a U.S. Citizen, can I stay and file AOS?
A: Generally, no. You may NOT file AOS if you did not originally enter the U.S. legally. Generally, you must depart the U.S., and obtain a K-1 fiance or I-130 spousal visa, however that may subject you to being banned from the U.S. There are various exceptions. It's best to consult a reputable immigration attorney.
Q: I've read elsewhere that I can't have a big wedding, because I need to show to the INS that my marriage was "spur of the moment". Is this true?
A: No. A long standing BIA (Board of Immigration Appeals) precedent decision dictates that a mere "preconceived intent to remain" (i.e. prior intent to marry and stay in the U.S.) is not grounds to deny an Adjustment of Status.
Q: What does this BIA decision say? Where can I read it?
A: It says: "In the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain. Matter of Cavazos, Int. Dec. 2750 (BIA 1980) clarified and reaffirmed. Matter of Ibrahim, Int. Dec. 2866 (BIA 1981)." You can read the entire context of the decisions at: http://www.gani.com/immigration/bia-decisions/
Q: Does the INS have to always follow this BIA decision?
A: According to: http://www.ins.usdoj.gov/graphics/lawsregs/biadec.htm "Decisions of the BIA are binding on all INS officers and Immigration Judges unless modified or overruled by the Attorney General or a Federal court."
Q: This BIA decision is over 20 years old! How do I know it still applies to the INS today?
A: See this letter written by the District Director of the Baltimore INS office on February 1, 2000: http://www.gani.com/immigration/dd-letters/dd-baltimore.doc
Q: So what would constitute "adverse factors" and result in a denial of an application for AOS?
A: Generally, if any fraud or misrepresentations were made to any Consular or INS Officials, while attempting to obtain a tourist visa, or at the Port of Entry (POE) while attempting to enter the U.S. as a tourist, then you will likely be denied AOS.
Q: What are some examples of fraud or misrepresentation?
A: If on your tourist visa application, you lied about having a fiance in the U.S., or lied about having a job, in order to make it appear that you would return to your home country. Or, if at the POE, you lied to the INS Inspector about the purpose or intended length of your visit.
Q: What if I told the INS Inspector that I only intended to stay for 2 weeks, but after entry, I changed my mind and want to get married and stay?
A: You *may* be required to prove to the INS that you really did change your mind, and did not intend all along to get married and stay.
Q: What is this 30/60 day rule I keep reading about?
A: This is a rule developed by the State Department for Consular and INS officials to determine if a visa was properly issued. If you make statements to a Consular/INS official about your intentions, and then change your mind (i.e. get married and file AOS) within 30 days of entry into the U.S., it will be assumed that you lied, unless you can prove otherwise. If you changed your mind after 30 days, but before 60, there is no presumption of fraud. If you changed your mind after 60 days, then your statement about your intentions cannot be used against you to make a finding of fraud.
Q: Where can I find this 30/60 day rule?
A: See: http://foia.state.gov/Famdir/MasterDocs/09fam/09m0040/0940063N.doc
Q: But this 30/60 day rule doesn't make sense! What about the BIA decisions?
A: The BIA decisions address the issue of entering the U.S. as a tourist with a preconceived intention to remain. It "forgives" your intent, if you had any, of USING a tourist visa to enter the U.S., marry, and stay. It does NOT "forgive" any lies or misrepresentations that you made in order to obtain a tourist visa, or entry into the U.S.! If you made oral or written statements which are inconsistent with your actions, you can still be denied AOS. However, the 30/60 day rule does provide the INS with a guideline to determine if your statements about your intentions were lies, or a genuine change of plans. In general, if your plans changed > 60 days after entry, your statements about planning to return to your country can not be used against you.
Q: Does this mean I should wait at least 60 days before marrying if I entered as a tourist? A: Maybe. IF you made oral or written statements to a Consular or INS Inspector that you intended to return to your country after your visit, then it would be wise not to marry and file AOS immediately after entry as a tourist. If you made no such statements - for example, if you were just waived through at the POE, then waiting 60 days is not necessary.
Q: What if I truly did NOT have the intention of marrying and staying when I entered the U.S. as a tourist, and I was never asked about my intentions at the POE?
A: Then you have nothing to worry about. It is perfectly legal to change your mind after entry into the U.S. The BIA decisions will not even apply to you, because those are necessary only for people who DID have immigrant intention while entering as a tourist. Q: What if I lied about having a job or owning a house? Will waiting 60 days before marrying protect me?
A: No. The 30/60 day rule only covers statements about intentions. It does not forgive lies about facts. In this case, it would be safer to depart the U.S. and obtain a K-1 or I-130 spousal based immigrant visa.
Q: What if I was ALREADY married to a U.S. Citizen, and I entered the U.S. as a tourist. Can I stay and file AOS?
A: Yes, same rules apply regardless of when or where you married. What counts is that you ARE married.
Q: I'm not in the U.S. yet. Why should I obtain a K-1 or I-130 based spousal visa? Why can't I just enter as a tourist, and file AOS?
A: Because, if your intention to marry, stay, and file AOS became known to the POE Inspector, you would be denied entry into the U.S. You may even be subject to Expedited Removal, and be banned from the U.S. for a period of 5 years or more!
Q: Isn't that inconsistent with the BIA decisions?
A: Absolutely! I never claimed the law made sense. It's kind of like the Cuban Adjustment Act. Coming to the U.S. on a leaky boat is against the law. If they catch you at sea, they'll send you back. BUT, if you make it to land, you can stay. Assuming, of course, you didn't shoot a Border Patrol agent to make it to land. Likewise, if you try to enter the U.S. as a tourist with the intention of marrying and staying, the POE Inspectors will send you back. But, if you make it in without otherwise breaking the law (i.e. lying, or shooting an agent), then you can stay and AOS.
Q: Wow, that's a lot of rules. Can you summarize it?
A: If you entered the U.S. legally, without lying, you can marry, stay, and Adjust Status.
************************************************************************ Other Miscellaneous Questions
Q: Why would anyone enter using a K-1 or I-130 based spousal visa, if entering as a tourist was an option available to them?
A: If you enter as a tourist, and file AOS, in some areas, it could be years before you obtained a green card. Some countries permit Direct Consular Filing, where you could obtain an Immigrant Visa/green card in just a couple of weeks! Also, certain INS offices, such as Detroit and Dallas, perform same-day AOS for people with K-1 visas.
Q: My I-129F (K-1) or I-130 (spousal) application is taking too long for the INS to process! I am a U.S. Citizen, and I deserve special treatment! How can I get my application expedited?
A: In FY1998, the U.S. admitted 660,447 new Immigrants. The single largest classification was spouses of U.S. Citizens, with 151,172, or about 1/4th of the total number of new immigrants. Bet you didn't know that, huh? Trust me, you're not special. In fact, if you count other Immediate Relatives, such as children and parents of U.S. Citizens, they total nearly half, or 283,368 of all new immigrants. Other relatives make up most of the rest. Only 77,517 immigrants were admitted in FY1998 due to employment based reasons.
Q: How many people use a K-1 visa, vs. a I-130 spousal Immigrant visa, vs. AOS from a tourist or other visa?
A: Here are stats from FY1998 151,172 - total spouses of USC who immigrated in FY1998 44,577 - 29% entered using an I-130 spousal Immigrant Visa 101,837 - 67% entered using another visa, and filed AOS 4,758 - 3% entered using a K-1 fiance visa http://www.ins.usdoj.gov/graphics/aboutins/statistics/ybpage.htm
Q: I have more questions for you. How can I reach you?
A: You can't. If you have questions, go to: http://www.deja.com/usenet/ join the newsgroup "alt.visa.us.marriage-based", and ask the people there.
************************************************************************ Legal Disclaimer: The person preparing this is NOT an attorney, nor does he have any legal training or background whatsoever. Use at your own risk! You may use any part of this file, or its entire contents, for any purpose, provided that you do NOT acknowledge the origin of this information. This includes any information found at the www.gani.com domain. You are also welcome to link to this file from your web site, but be forewarned - I may remove it or the www.gani.com links at any time. It's preferable to make a copy of the information to put directly on your site, keeping in mind NOT to identify the source of the information! However, as I may update this information from time to time, you may want to check back here for the latest revisions. File Date: September 8, 2000