Many fiancés and spouses of U.S. citizens or lawful permanent residents 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 know that a tourist visa (a B-2 visitor visa) can be gotten in a few days from a local U.S. consulate. In fact, 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 or rely on the VWP, come to the United States, and then worry about the rest of the green card application process once here?
There are two problems with this idea.
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) chooses to make an issue of it, your misuse of a tourist visa could lead to your losing the right to obtain not only a marriage-based green card, but most other types of U.S. visas.
Why does USCIS care if you come to the U.S. to wait for your marriage-based green card process to finish? The reason is because there is no guarantee that you’ll be successful in getting the green card. If you don’t get the green card, then you’re in the U.S., and USCIS is concerned you’ll never leave.
Does that mean no one who ever uses a tourist visa to enter the U.S. can get a green card based on the marriage? No. Exceptions and waivers are possible.
If, upon entry to the U.S., the non-citizen hadn't yet decided to marry and/or apply for a green card, it can be excusable.
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.
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, shows that Gregor did not just use the tourist visa to get around the U.S. immigration laws.
USCIS has traditionally borrowed a rule that originally came from the U.S. State Department to help determine whether someone committed visa fraud by applying to adjust status after entering on a tourist visa. It’s known as the 30/60/90 day rule. However, in September 2017, the State Department retracted this rule, so it's possible USCIS will do the same. Check with an immigration attorney for the latest.
In any case, up until September 2017 (and possibly up to now): If you apply to adjust your status within 30 days after the last time you entered the U.S., USCIS will assume you committed fraud by asking for a tourist visa. If you apply to adjust status after 30 days but before 60 days after last entering the country, USCIS will be especially suspicious about fraud, but you can convince USCIS it was never your plan to adjust status when you got the tourist visa. Adjusting status after 60 days in the U.S. might not raise great suspicions, but USCIS can still find that you committed fraud if there is other evidence you got a tourist visa (or used the VWP) while secretly intending to adjust status.
The 30/60/90 day rule has always been just a guideline, not a hard-and-fast rule. USCIS has been known to turn a blind eye to fairly obvious misuse of an entry visa, or applicants have been able to convince the officer who interviewed them for the green card that when they entered the U.S. on a temporary visa, they really planned a short stay (and only decided to marry or apply for a green card after arrival). You'd really want a lawyer's help in making such an argument, however.
If USCIS remains inclined to think you've committed visa fraud, you can ask it to forgive your error. Obtaining such forgiveness (in legalese, a “waiver”) is not easy, however, and will require a lawyer's assistance.
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 spend time on a waiting list until a visa number is available and you are thus eligible for permanent residence or a green card. The wait can be years long, based on your "priority date" (the date your spouse submitted Form I-130 to USCIS for you).
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, and you run the risk of being deported (removed) from the United States.
Curious about other types of U.S. visas? Many types of visas and immigration benefits are available 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 in U.S. Immigration Made Easy, by Ilona Bray (Nolo).