Can Fiance Enter U.S. on Visa Waiver, Marry, Apply for Green Card (Adjustment of Status)?

Let's take a common immigration-related scenario: A U.S. citizen gets engaged to a man from another country. The man has been to the United States many times, using the Visa Waiver Program (VWP). Naturally he wonders, why not simply come in on the VWP once again, and take care of the wedding and the green card paperwork after arriving? Does he really need to go through the much longer process of getting a K-1 fiancé visa to come to the United States in order for he and his intended spouse to get married and apply to adjust his status to U.S. lawful permanent resident (get a green card)?

On the surface, such a plan sounds like a sensible or creative workaround; but immigration law and common sense don't always match up, as we'll describe below.

Using a VWP Entry for Purposes Beyond Short Visits Is Illegal

The plan outlined above would amount to a fraudulent use of the Visa Waiver Program, which could ultimately result in the new husband's application for lawful permanent residence (a green card) being denied.

Let's look at how this could play out, step by step. Say the foreign-born fiancé takes a long plane trip to the United States, where an officer of Customs and Border Protection (CBP) greets him and asks about his purpose in entering the United States. The man says he's going to get married to his U.S. girlfriend and apply for a green card. The CBP officer would no doubt inform him that, because the Visa Waiver program is meant only for people coming to the United States for visits of no longer than 3 months (90 days) for either pleasure or business, and who have no intention of staying in the U.S. permanently, his entry is denied. The man would likely have to return to his country on the next plane. Worse still, CBP might detain him until a supervisory officer decides what to do.

Or let's say the foreign citizen successfully lies to the CBP officer about his intentions in the United States and thereby gains U.S. entry. The couple proceed to get married and submit an application for adjustment of status (a green card) to U.S. Citizenship and Immigration Services (USCIS). USCIS is likely to accept the application for processing, because under the right circumstances, spouses of U.S. citizens who entered the United States legally are allowed to use the U.S.-based adjustment of status procedure.

However, at the green card interview, the USCIS officer will likely notice that the wedding took place not long after the VWP entry, asks questions, and perhaps ultimately decides that the husband committed fraud upon entry and is therefore inadmissible. In rare cases, and after paying a lot in legal fees, the applicant might qualify for a waiver of the fraud-based inadmissibility and receive the green card from USCIS, but this cannot be counted on, and depends on showing hardship to the U.S. spouse.

The officer would then deny the green card and place the foreign-born spouse into removal (deportation) proceedings.

By the way, getting married before entering the United States isn't likely to help much either, if the couple applies for the green card soon after the foreign spouse's arrival. See Risks of Entering the U.S. as a Tourist, Then Applying for Marriage-Based Green Card.

Reasons Some Applicants Succeed in Adjusting Status After a VWP Entry

It's possible that you have read about or heard of people who did, in fact, enter the United States on the VWP, get married, and then apply for and receive U.S. residence. How could this have happened? There are numerous possibilities, for example:

• they might have truly entered as tourists, and perhaps met their eventual spouse during the trip, or been only casually dating before, without actual plans of getting married
• the USCIS officer might have missed or turned a blind eye to the timing and fraud, or
• the foreign national might have qualified for a waiver of the fraud.

Individual facts and intentions are important in cases like these. Attempting to compare your situation with someone else's can lead to irreparable mistakes. Once you have fraud on your immigration record, it's tough to recover from, creating another ground of ineligibility for a marriage-based or other visa or green card. (See, for example, How Past Immigration or Criminal Fraud Might Lead to Future U.S. Visa Denial.)

Ultimately, Applying for the Appropriate Visa Will Be Less Stressful

To avoid the stain of visa fraud on the immigrant's immigration record (not to mention the expense and time that removal proceedings require) it will be far easier to go the legal route and either apply for a K-1 fiancé visa before the marriage or get married overseas and then apply for an immigrant visa (the equivalent of a green card).

Getting Legal Help

Particularly if you have already entered the U.S. on the VWP, it would be wise to consult with an experienced immigration attorney for a full analysis of your situation and for help with the planning and paperwork. See How to Find a Good Immigration Lawyer For Your Case.