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Asked in Corvallis, OR Sep. 19, 2015 ,  6 answers Visitors: 171
Is What My Friend Told Me True About My Immigration Status After Marriage On a Tourist Visa?
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6 Answers

Anonymous
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Posted on / Sep. 23, 2015 21:36:16

The fact that you married within 30 days or less of your entry into the US does not automatically mean that you had preconceived intent to get married when you came here. And the issue of preconceived intent may not even be asked at all at an immigration interview. There are several court cases that say that even if you had a preconceived intent to marry when you entered, that is not sufficient grounds to deny the marriage-based immigrant visa as long as the other indications of a bona fide marriage are present. I suggest that you consult with an experienced immigration attorney who has dealt with these issues before.

Anonymous
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Posted on / Sep. 21, 2015 17:06:19

When a person enters the U.S. on a B1/B2 tourist visa, the purpose of the visit should be temporary. Getting married to a U.S. citizen is not prohibited during the temporary visit. The real issue is whether you misrepresented material facts to obtain entry into the U.S. For example, if you had preconceived intent to marry and stay permanently in the U.S., and you told the US Customs Officer that the purpose of your visit was only a temporary visit with friends, this could be construed as immigration fraud.

Your friend might be referring to the U.S. Department of State's 30/60 day rule. When a foreign national marries a U.S. citizen or applies for permanent residence within 30 days of entry, the Department of State (DOS) presumes that he misrepresented his intent in seeking a visitor visa or entry. If the marriage or green card application occurred after 30 days but within 60 days of entry, the DOS does not presume there was misrepresentation. If the facts in the case provide a reasonable basis to believe the foreign national misrepresented his intent, the DOS allows him to present rebuttal evidence. If the marriage or green card application occurred after 60 days, the DOS does not consider such conduct to constitute fraud or willful misrepresentation to obtain immigration benefits.

In your case, you married after 30 days, but within 60 days. USCIS is a separate agency from the DOS and does not have to follow the DOS policy (although it may use the policy as guidance). The Board of Immigration Appeals has held that immediate relatives are exempt from the 30/60 day rule. In other words, immediate relatives of U.S. citizens who wish to apply for adjustment of status may do so at any time, even within 30 days of entry into the U.S. But generally, it's best to wait until at least 60 days have passed before you marry and/or apply for a marriage-based green card.

As the spouse of a U.S. citizen, you may file a one-step petition for a green card/adjustment of status, i.e. your US citizen spouse files the I-130 petition and you concurrently file the I-485 application with USCIS. USCIS recognizes that plans change and the decision to marry could have been made only after you entered the U.S. Furthermore, if the US Customs Officer never asked about the specific purpose of your visit and you did not provide any misleading information, there is no fraud/willful misrepresentation. Staying silent or failing to volunteer negative information that is not being requested does not amount to fraud/willful misrepresentation. If necessary, you may also file a Form I-601 waiver of inadmissibility (due to fraud).

If you leave the US to apply for a CR1 (conditional resident) visa, based on I-130 approval, you will be subject to the DOS' 30/60 day rule. And if you accrue at least 180 days of unlawful presence before you depart the U.S., you will be subject to the 3/10 year bar to re-entry. In that event, an I-601 waiver of inadmissibility (due to unlawful presence) will be required. You might also need an I-601 waiver for the additional ground of fraud.

For more information, see:
Applying for a Marriage-Based Green Card Following Entry Into the U.S. as a Visitor. http://bit.ly/1IU2xVM

5 Things to Do to Get Your Marriage-Based Green Card. http://bit.ly/1Lxty2h

What to expect at your marriage-based green card interview. http://bit.ly/1EtkO9V

You should consult an immigration attorney to help you determine the best route to take. In general, consular processing carries more risks, but it really depends on your specific situation. At the very least, you want to have an attorney at the green card interview, if you choose to stay in the U.S. and file the one-step petition.

Anonymous
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Posted on / Sep. 21, 2015 16:22:34

This is a good question because many people find themselves in the same position as you. Here is a link to the Foreign Affairs Manual Note that deals with the "30/60 Day Rule": http://www.state.gov/documents/organization/87011.pdf. The rule is set out in Note 4.7-1 through 4.7-4. The rule leaves a lot of room for the exercise of discretionb on the part of the government official. Even though this is a Department of State rule, USCIS will generally follow it in adjudicating your adjustment of status application. You need to meet with an immigration lawyer to discuss your case in detail and decide your preferrred course of action. Depending on the specific facts of your case, it might still be best to file an adjustment of status application, even though there may be questions about whether you made a misrepresentation at your entry or not. See the link to AIlA below for help in finding an immigration lawyer.

Anonymous
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Posted on / Sep. 20, 2015 18:09:00

Getting married that soon after entry creates a presumption of fraud. I am truly hopeful your friend is not an immigration lawyer. First, it is the wrong advice. Second, you should only take advise from a lawyer. Please hire an attorney to help you before you regret not doing it. It will cost you way more later.

Anonymous
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Posted on / Sep. 19, 2015 18:02:47

Boker tov,
Yes, you will in all likelihood face problems convincing USCIS that you did not have a "preconceived intent" to get married to a US citizen when admitted into the country as a "visitor", which could constitute a finding of "visa fraud". You should consult with and hopefully hire an experienced immigration lawyer.

Anonymous
Reply

Posted on / Sep. 19, 2015 17:36:18

In general if someone comes on a non-immigrant visa like a tourist visa and then takes actions to pursue an immigrant process such as adjustment of status within 30 days of entry there is a strong presumption that the person misrepresented their nonimmigrant intent. It sounds like you may have gotten married close to that 30 day mark, which means you may have an uphill battle convincing the adjudicator that you didn't come with the intention to marry a US citizen and adjust your status when you entered on your tourist visa. If that was your intention all along that would constitute visa fraud. You should speak to an immigration attorney in your area to discuss your options.

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