If you and your spouse are from different nations, you might be separated by an ocean or border, until one of you gains permission to move permanently to the other’s country. Maybe you fell head over heels and got married in a foreign country while on vacation or abroad for work. Maybe you have been dating long distance for years and decided you want to create a family. If you are a U.S. citizen married to a foreign-born person, then you might have already started the immigration process for your spouse, but are noticing that it seems to take forever. Due to the difficulty and length of separation, you might wonder, “Can my spouse come to visit me on a tourist visa, then apply for a green card in the U.S. so as not to have to leave again?”
While this might appear to be a tempting and simple scenario, it can be dangerous from an immigration perspective. Let’s find out why.
A visitor visa (B-1 or B-2) is considered a “nonimmigrant” classification, which means that the recipient’s intent in coming to the United States is to stay only temporarily. This intent is a key criterion to obtain the visa from the Department of State on a visa application or interview. Even if you have a B-1 or B-2 visa in your passport, or are coming on the “visa waiver” program (VWP), you must still (with a few exceptions not relevant here) satisfy border officials that you will depart the U.S. when your temporary stay is concluded.
The U.S. is serious about trying to prohibit people from entering for a purpose other than what they initially stated, and from “overstaying,” that is, remaining here longer than authorized. If U.S. government officials do not believe your purpose is truly temporary, or they see evidence to the contrary, they may deny you entry.
For example, a young woman from Europe who is married to an American citizen, but has no job, relatives, or long-term lease back in Spain, and who shipped furniture and boxes of clothes to the U.S., was recently turned away because the Customs and Border Patrol (CBP) agent at the airport suspected she was not telling the truth about her reason for visiting the U.S. and that she had no intention of going back.
So given that a tourist or visitor visa is only to be used for someone who is coming to the U.S. for a short visit (90 days or less on “visa waiver” or up to six months as a visitor), your spouse is supposed to use a different immigration procedure to join you here on a permanent basis.
The correct and usual procedure, if your spouse lives abroad is for you, the U.S. citizen or permanent resident, to file with U.S. Citizenship and Immigration Services (USCIS) a visa petition known as an I-130, along with supporting documentation, to prove that the marriage is “bona fide” or made in good faith, and not just for the purpose of obtaining a green card.
When the I-130 is approved (normally in four to six months or more), then you have to submit various documents and pay fees to the Department of State through the National Visa Center, eventually culminating in an interview for your spouse at a U.S. embassy or consulate in the home country. This whole process often takes over a year, depending on government delays and processing time, whether you and your spouse submit the appropriate documentation on the first try, whether you can show an adequate level of supporting income, how backed up the interview process is, and so forth.
Starting in April 2020, the COVID-19 pandemic forced embassies to suspend visa processing. Between such closures and travel restrictions, some couples have been forced to stay apart for nearly two years.
All this combines to create a situation where you and your spouse might feel you cannot wait any longer to be together, to start a family, or find employment in the United States.
You wouldn’t be the first to wonder whether you can bring your spouse to the U.S. on a tourist or visitor visa, particularly if he or she already has one in the passport that is still valid, after which you’d ideally complete the green card process in the United States. (Note that if your spouse doesn’t already have a valid tourist visa, an application to the U.S. consulate for a B-1 or B-2 visa is likely to be denied, particularly if you have already begun the green card process from abroad, because that shows the applicant’s ultimate goal is to gain the right to live permanently in this country.)
To discourage people from using tourist visas for the wrong purpose (namely, staying in the U.S. permanently), USCIS uses something referred to as the 90-day rule. If couples do not know about or pay attention to the rule, or understand its ramifications, it could have serious repercussions.
This rule, initiated in September 2017, supplanted a slightly more lenient policy. The 90-day rule means that the U.S. government can assume that an applicant misrepresented his or her purpose in coming to the U.S. as a tourist if, within 90 days of arriving here, the person applies for a marriage-based green card, among other actions. Because of this assumption, the green card application could be denied, and the foreign spouse might have to leave the United States. This is a steep price to pay.
There are situations where someone might come in on a tourist visa and plan to return to the home country, but legitimately change plans after entering. For example, someone might, during the visit, get a great job offer from a U.S. employer that seems too good to pass up; develop health considerations or pregnancy that prevent returning home; or find that the world political situation has changed drastically making it unsafe to leave. Such situations might mean that it now makes more sense to apply for a green card here through the process known as adjustment of status instead of processing from abroad.
In these sorts of cases, the couple will need to convince USCIS that no misrepresentation or fraud occurred in obtaining or using the visa or visa waiver program, that such a change was not anticipated and is not illegitimate. This can be a risky scenario. It is important for couples to fully understand the need for patience and process, as well as the 90-day rule, in order to successfully move forward with their plans for a happy life together.