Risks of Entering the U.S. as a Tourist, Then Applying for Marriage-Based Green Card

You may be accused of visa fraud if you apply for a green card if you entered the U.S. as a tourist.

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Many fiancés and spouses of U.S. citzens, who are planning to immigrate from overseas, wonder why they cannot simply use a tourist visa to enter the United States, or enter on the Visa Waiver Program (VWP). They know they will spend a long time outside the United States waiting for their proper visa, while their fiancé or spouse is living inside the United States. And they also know that a tourist visa (a B-1 visitor visa) can be gotten in a few days from a local U.S. consulate -- or if they're from certain countries, is unnecessary, because they can enter using solely their passport, according to the VWP. So why, they wonder, can’t they just pick up a tourist visa, come to the United States, and then worry about the rest of the green card application process once they are here?

There are two problems with this idea. First, if you pose as a tourist (whether with a visa or on the VWP) with the secret intention of staying in the United States for an indefinite time, you will have committed visa fraud. Visitor visas, or indeed any temporary visas, are for people who intend to stay temporarily -- and then leave. They are not for people who plan to marry and live happily ever after in the United States. If U.S. Citizenship and Immigration Services (USCIS, formerly called “INS”) chooses to make an issue of it, your misuse of a tourist visa could lead to your losing the right to obtain a marriage-based green card and most other types of U.S. visas.

USCIS will be especially suspicious if you get married within two months of entering the United States. Sometimes USCIS will turn a blind eye, or you may be able to convince the officer who interviews you for the green card that when you entered the U.S. on a temporary visa you really planned a short stay (and only decided to marry or apply for a green card after you arrived). If USCIS remains unconvinced, you can ask the agency to forgive your error, but obtaining such forgiveness (in legalese, a “waiver”) is not easy.

EXAMPLE 1:

Boris enters the United States on the Visa Waiver Program, marries Sarah (a U.S. citizen) a week later, and they apply for his green card in Chicago. At their green card interview, the officer asks, “When did you decide to get married?” Boris answers, “Oh, I asked Sarah to marry me during a phone call last month, and when she said yes, I was so happy that I packed my bags, got on the earliest cheap plane flight, and we were married in the Elvis Chapel in Las Vegas the following Monday.” This is an unfortunate answer, because it practically forces the immigration officer to notice that Boris committed visa fraud.

EXAMPLE 2:

Gregor enters the United States as a tourist, marries Eileen (a U.S. citizen) three months later, and they apply for his green card in New York. At the green card interview the officer asks, “What was your intention when you entered the United States?” Gregor says, “Our relationship was going very well long-distance, so I decided to travel to the United States to see Eileen in person. Frankly, it was also time for a vacation. A few weeks after I arrived, we realized we were really and truly in love. And when that feeling didn’t wear off, we decided to marry.” This answer has promise. Even if this couple was contemplating marriage before Gregor arrived, his candid answer, plus the fact that they waited over two months to get married, makes clear that Gregor did not just use the tourist visa to get around the U.S. immigration laws.

The second problem with using a tourist visa for U.S. entry is that if your U.S. fiancé or spouse is a permanent resident (not a citizen), you will (due to annual limits on visa allotments) likely have to wait for years until you are eligible for permanent residence or a green card. That means that if you come to the United States as a tourist and your visa runs out, you will be here illegally for all of those years of waiting. Living here illegally will ultimately make getting a green card extremely difficult.

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RESOURCE

Still curious about other visas? There are many types of visas and immigration benefits for temporary and permanent U.S. residence. Though in many cases they apply only to narrow categories of people, you might want to check out detailed information on these visa categories in U.S. Immigration Made Easy, by Ilona Bray (Nolo).

by: , J.D.

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