Marrying a foreigner who is in the United States on a tourist visa is perfectly acceptable when the marriage is spontaneous (meaning it wasn’t planned before the foreigner applied for their visa). Most immigration attorneys would still recommend that the foreigner return to their home country and apply for a green card with the US Embassy, but it’s certainly possible to change their status while still in the United States.
Marrying a foreigner on a tourist visa becomes problematic when the marriage is premeditated. If the foreigner originally intended to get married and permanently reside in the United States, they should have applied for a fiancé visa, not a tourist visa. By lying to a consular officer during the visa interview, they committed visa fraud. In the best-case scenario, the foreigner will be deported. In the worst-case scenario, they may be banned from returning to the United States.
If you marry a foreigner on a tourist visa and your new spouse would like to remain in the United States, you should consult with an immigration attorney before leaving the country or applying for an adjustment of status. An experienced attorney can significantly raise your chances of being approved for a green card and minimize any potential risk of visa fraud or inadmissibility into the United States.
How to Marry a Foreigner on a Tourist Visa
Be aware that immigration authorities follow a rule called the 90-day rule. The rule holds that travelers who get married during their first 90 days in the United States pose a higher risk of visa fraud. If you want to stay off immigration officials’ radar, avoid the 90-day rule by postponing the wedding until at least three months after the foreigner enters the United States. The longer you wait, the better.
In the ideal scenario, your new spouse should plan to return to their home country before applying for a new visa or green card status. Doing so honors the terms of the 6-month tourist visa and presents the lowest risk of being charged with visa fraud. It may take a few weeks or months before the application is approved by the US Embassy, but this is the smoothest path to legal residency in the United States.
Applying for an Adjustment of Status
If your new spouse does not want to return to their home country, they can apply for an Adjustment of Status while in the United States. This path can be extremely challenging for visitors on a tourist visa, but it’s not impossible. To be successful, you’ll need to prove that the marriage is legitimate (i.e. you married for love, not just for a green card), and you’ll need to convince immigration officials that the wedding wasn’t premeditated.
The end result of this process is designation as a lawful permanent resident, otherwise referred to as a green card. After spending at least five years in the United States with a valid green card, your spouse may be able to apply for naturalization and become a US citizen.
When you’re ready to begin the process, start by scheduling a consult with an immigration attorney. With your attorney’s assistance, you’ll then need to take the following steps:
- File a Petition for Alien Relative – the spouse who is the US citizen or lawful permanent resident will need to submit Form I-130 to establish their relationship with the immigrant (legally referred to as an alien). There is a $535 filing fee.
- File an Application to Register Permanent Residence or Adjust Status – as long as the new spouse is already in the United States under a valid visa, you can file Form I-485 concurrently with Form I-130. There is a $1,140 filing fee, and an $85 biometrics fee for fingerprinting.
- Attend ASC appointment – after submitting your packet, USCIS will mail you a notice regarding a biometrics appointment at a local Application Support Center (ASC). At the appointment, a representative will take your photograph, fingerprints, and signature. Note that if you miss this appointment without properly notifying and rescheduling, your application may be denied.
- Attend the interview – while an interview with an immigration officer isn’t necessary for all applicants, foreigners who get married on a tourist visa will almost certainly require one. This is your opportunity to prove to immigration officials that your marriage is legitimate, and you did not plan on getting married when you applied for your tourist visa. Your attorney will help you prepare for this interview and gather evidence to support your claims.
After completing your interview with a USCIS representative, you can check the status of your case online. Once the agency has made a decision, they will mail you a letter. Assuming your case is approved, you should receive your green card in the mail soon after.
If your application for Adjustment of Status is denied, the decision letter should explain which factors contributed to the decision. Unfortunately, you cannot appeal the decision, but you may be eligible to file a motion to reopen or reconsider your case.
Getting a Fiancé Visa
When a foreigner intends to travel to the United States to marry a US citizen or lawful permanent resident, they should apply for a K-1 fiancé visa, not a B-2 tourist visa. Under a K-1 visa, the foreigner simply needs to get married within 90 days of entering the United States. After the wedding, he or she can apply for an Adjustment of Status without having to leave the United States. The foreigner will still need to demonstrate that the marriage is valid and is not for the sole purpose of obtaining immigration benefits, but the approval process is much easier.
Unlike most visas that are initiated with the US Embassy in the foreigner’s home country, a K-1 visa application is typically filed by the fiancé who is a US citizen or lawful permanent resident. The fiancé will need to file Form I-129, Petition for Alien Fiancé, with the USCIS. If the foreigner has any children, they may travel to the United States with a K-2 visa.
The Deportation Process
Generally speaking, the United States has the right to deport foreign nationals who violate their visa, are considered a threat to public safety, or participate in criminal activity. Immigrants who illegally enter the country without travel documents or with forged documents may also be deported.
If ICE initiates removal proceedings to deport you from the United States, here’s what you can expect:
- You will be detained at an ICE detention facility or contracted prison until you post a bond, are released on your own recognizance, or are deported.
- ICE will present your case to an immigration court of the Department of Justice
- You may seek relief from deportation under certain qualifying circumstances. If the court accepts your defense against deportation, the judge will approve a cancellation of removal. If the court rejects your defense, the judge will issue a removal order.
- Should the immigration court reject your request for relief, you may appeal your case to the Board of Immigration Appeals and/or the Circuit Court of Appeals.
- Should the appellate courts reject your appeals, the US will coordinate with the receiving country to accept the deportee and acquire travel documentation. Some countries (such as Mexico) can result in a deportation in less than 2 weeks, while others can take up to 90 days.
Note that if your case qualifies for expedited removal, the standard process is suspended, and you may be deported in less than two weeks. Outside of committing an aggravated felony, this usually only applies to illegal aliens who are detained less than 100 miles from the border and within 2 years of their entering the United States.
Call Call our Immigration team at(480) 626-2388 to discuss your case today.
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