Filing an I-130 Marriage Petition in U.S. on a Tourist Visa
I often get the request from interested clients, “why doesn’t my fiance just come to the United States on a tourist visa and we will get married here”. This is the question which sometime comes up in response to my information to the client about the length and procedure to marry your foreign spouse in their country, and adjust his/her status through the U.S. Embassy or Consulate.
My answer has to be that some people get away with it (marriage on a tourist visa), but some, probably most, do not. If your fiance comes to the US with the sole intention of getting married in the U.S. and filing then for adjustment of status to their green card and staying here, then this is deemed to be visa fraud, and it is a violation of U.S. Immigration Laws. The USCIS comes down very hard on anyone they feel has committed visa fraud. People who commit visa fraud can become permanently ineligible to enter the U.S. or receive immigration benefits.
You may enter the U.S. on a tourist visa, marry a U.S. citizen and file your I-130 Marriage Petition, then return home before your tourist visa expires. The time when you do run into trouble is when you enter the U.S. on a tourist visa with the clear intention of marrying and staying in the U.S.
There are stories on the internet about people who got married in the U.S. while on a tourist visa, didn’t return home, and successfully adjusted his or her status to permanent resident. It is possible to do and Adjustment of Status under the I-485 form from a tourist visa to a green card, but the people in this scenario were able to prove to the USCIS that they came to the U.S. with honest tourist intentions and happened to make a spur-of-the-moment decision to get married. Entering the U.S. on a tourist visa and filing an I-130 marriage petition followed by the I-485 Adjustment of Status, with no preconceived intent to marry can be difficult to prove.
Things you should know about Tourist Visas and Marriage Petitions
1. The marriage must be in good-faith:
The most important thing you have to prove to the USCIS is that your marriage was entered in good faith. If immigration officers suspect that a tourist visa was used to quickly file an I-130 marriage petition only for the immigration benefits, they will deny the application and deport your fiance back to her home country. The most important part of a marriage petition is the documents and proof that the marriage is a bona fide, good-faith marriage.
2. The 30/60 Day Rule:
The Department of State has an unwritten ‘30/60 day rule’ to help consular officers determine if someone has committed visa fraud. Even though this rule was developed by the Department of State, it is also used by USCIS when they are adjudicating applications within the United States. Foreign
nationals coming to the US on tourist visa are subject to this “30/60 day rule.”
This “30/60 day rule” makes it risky to apply for change of status or marriage based adjustment of status within 60 days of arriving in the US and very dangerous within 30 days of arriving.
3. What will happen if you are denied Adjustment of Status?
If you enter the US on a tourist visa and got married, filed a I-130 Marriage Petition, either of the following two things will happen
- You can successfully apply for Adjustment of Status using the I-485 application after the marriage and live happily ever after; or
- The immigration officer can find there was preconceived intent, deny the application, and send you back to your home country (please note that if the immigration officer does not find that you entered into a fraudulent marriage you can always seek your immigrant visa through the consulate in your home country).
The possibility of being denied an adjustment is very real, so you should both be prepared for any eventuality.
4. Immigration Officers are watching you:
When you arrive on a tourist visa. the CBP (Customs and Border Protection) inspection officers, at a port of entry, will ask you the purpose of your travel to the US. You should always be upfront and honest with the immigration inspectors. If you state your intent as, “To see the Golden Gate Bridge,”
and a search of your luggage reveals a wedding dress, be prepared for a long interrogation session. If the border official believes that you’re not coming to the U.S. for just a visit and you cannot prove your intent to leave before your visa expires, you’ll find yourself on the next plane home.
5. No excuse for visa fraud:
If you think it’s easy to fool the U.S. immigration officers – then I would say you should think twice. If you are caught violating the immigration laws, you could be accused of committing visa fraud. If fraud is found, you will face serious consequences. At the very least, you will have to return to your home country. Even worse, you may receive a ban from reentering the U.S., a ban that could be indefinite.
Post by Immigration Attorney John B. Buda
Buda Law Group