There are cases that foreigners who want to enter and stay indefinite in the United States try to accomplish it by getting a nonimmigrant status through a tourist visa or under the Visa Waiver Program (VWP). The next step in this pattern is to apply for the Adjustment of the status process.

Why does this happen?

Tourist visas are easily accessible with the U.S. consulate, and VWP allows citizens of designated states to enter the U.S. based on passport only. However, these visas and entry types are temporary and predicted to be used only for single intent visits, related, for example, to business or tourism. Any inconsistency in foreigner behavior is most likely to be interpreted as visa fraud.

Examples of inconsistent acts from Volume 9 of The Foreign Affairs Manual:

  • non-authorized work
  • involving in studying without an adequate student visa
  • marriage with a U.S. citizen or a green card holder concluded while foreigner had the B visa nonimmigrant status
  • taking the steps forward to the process of Adjustment of status by filing the Form I-485

Temporary Visas

Temporary visas are granted for a specified purpose, so if the inconsistent acts get conducted, U.S. Citizenship and Immigration Services (USCIS) has to determine did the visa holder intends to leave or not. That is why USCIS has developed a guide to follow while reviewing the Adjustment of status application.

The analysis of the applicant’s intent lies on the 90-day rule, which has replaced the old one, 30/60-day rule, and has expanded the scope of the individuals affected by it. According to this rule, if the temporary visa holder gets married or files the application for getting a green card within 90 days after entering the United States, it will create the presumption that they have misrepresented the original intent.

It can further lead not only to denying of the green card application but also to the revocation of the temporary visa. The 90 days are counted from the last entry date, and if there are multiple visas, it refers to the most recent one.

Although it is not recommended to use a tourist visa to enter and get married in the United States, some exceptions and waivers are available if the applicant can prove to the USCIS officer that the original intent was sincere.

Additionally, it needs to provide evidence that changed circumstances have affected the genuine intentions of the applicant. The final decision is made based on submitted evidence of original intention to leave too.

Besides aliens permissible activities under B2 visa, there are visitors under special circumstances where this visa category can also be used, which is stated in the 9 FAM 402.2-4(B):

  • The fiancé(e) of the U.S. Citizens or permanent resident aliens who fall under the K visa category but intends to get back to the residence in a foreign country after the wedding
  • Fiancé(e) of nonimmigrant alien in the United States who will apply to change the status by consular processing
  • Proxy marriage spouse
  • Foreign spouse or child of the U.S. Citizen or resident alien
  • Cohabiting partners and other family or household members who are not eligible for derivative status

In conclusion, it is necessary to avoid violating the nonimmigrant status, even if it means that an immigrant has to start the slower and more complicated K-1 or CR-1 embassy visa process to get married and to be able to apply for the green card.

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