Getting Married on a B1/B2 Visitor Visa or ESTA and Applying for a Green Card in the Age of Trump

Is it possible for me to get married to my fiancé, a US citizen if I am on a visitors B1/B2 visa?

If I’m just visiting the US, what’s the safest way for me to get married to my partner, who is a permanent resident?

When should I apply for a Green Card if I am on a visa and just got married to my partner, who is a US citizen?

I have overstayed my visa and am married to my US citizen —can I still apply for a Green Card?

For many years, people dating US citizens long-distance have been entering the US to visit their significant others using B1/B2 visitor's visas. This makes it all quite innocent right?

Entering as a boyfriend/girlfriend on the visitor visa, or ESTA (also known as the Visa Waiver Program), is not in and of itself a visa violation. It can, however, become a problem if the girlfriend/boyfriend plans to use the non-immigrant visa to enter, and then take actions that are contrary to the intent of the visa by, for example, getting married to their US citizen love interest. This is because marriage to a US citizen implies immigrant intent, according to the US immigration laws, and traveling with what's called "dual intent" is strictly forbidden when it comes to the visitors visa or ESTA. 

The way the USCIS managed these presumptions of "dual intent" while adjudicating Adjustment of Status petitions, was by applying a 30/60/90-day rule which meant the following: If the foreign national married or applied for Adjustment of Status within 30-days, this was a red flag case, i.e., they would scrutinize the couple to make sure that the quick marriage was not planned in advance and was instead based on some unforeseen circumstance. Marriage within 60-days of the foreign national's arrival created a rebuttable presumption that gave the couple the benefit of the doubt. Marriage after 60-days would mean you're home free, i.e., the couple would not be questioned about timing. They'd only be questioned about the authenticity of the marriage, as in all marriage-based cases. 

HOWEVER, there has now been a significant change that seriously affects the adjudication of these cases. The US Department of State has issued guidance that establishes a presumption of willful misrepresentation when the foreign national marries a US citizen or files for Adjustment of Status within 90-days of arriving in the US on their visitor visa or ESTA, as they will be deemed to have engaged in conduct that violates the terms of their non-immigrant status. The individual will be presumed to have misrepresented his or her intent to comply with the terms of his or her visa when entering the country. This could lead to a finding of visa fraud, which results in a permanent ban from the US.

FURTHER, if the marriage takes place after 90-days, the couple still isn't out of hot water. If the facts trigger suspicion, the USCIS Officer may apply the “reasonable belief” standard, and request an Advisory Opinion from the Department of State to determine whether there was any willful misrepresentation on the foreign national's part. 

• engaging in unauthorized employment while in a non-immigrant status that does not allow it, such as B-1/B-2 visitor status;

• enrolling in a course of academic study, if study isn’t authorized for that visa status classification (e.g., B-1 temporary business visitor status);

• marrying a US citizen or lawful permanent resident and taking up residence in the United States, while in a non-immigrant status that does not allow immigrant intent; or

• engaging in any other activity for which a change of status to another appropriate non-immigrant status or adjustment to lawful permanent residence would be required, without making that change or Adjustment of Status.

We strongly advise that you contact an immigration attorney at the first serious thought of marriage if you or your partner are planning to eventually apply for permanent residency in the US. In some situations, getting married soon after arrival can complicate one’s chances of obtaining permanent residency, and may even eliminate the chances entirely. 

Should you have any questions please do not hesitate to contact us for more information. We understand that these are difficult times but we are available to take your call so we can discuss the best options for you!

To get in touch for a consultation call us, email us at info@khunkhunlaw.com or review other options to get in touch with us for an immigration consultation.