inside immigration information about marriage green cards and work visas in America
GREEN CARD MARRIAGE
Sometimes Americans meet a foreigner who is on vacation in the USA in San Francisco or New York City while they are on a 6 month B2 tourist visa or an ESTA Visa Waiver. They start dating and fall in love and want to get married. They want their new spouse to go through the marriage green card process so that they can live together in the USA permanently.
Other times, foreign nationals are already married to a U.S. citizen but due to their jobs, they have to stay in their home country and just visit their spouse using a B2 visa. During the B2 visa visit, the couple may decide they want to file a marriage green card application instead of being separated so much.
In both cases, applicants need to remember that when a USCIS Immigration Officer makes a decision about granting someone who entered the USA on a B2 tourist visa or an ESTA visa waiver a marriage green card, they have some discretion, because they are being asked to adjust the foreign national’s status from temporary “nonimmigrant” status (such as B2 or ESTA visa waiver) to permanent “immigrant” status.
The thing about marriage green cards is that the decision to grant U.S. permanent residence (called a marriage green card) made by the USCIS Immigration Officer is “discretionary,” not mandatory. Therefore, the USCIS Immigration Officers do not have to grant the change from B-2 Tourist visa or ESTA Visa Waiver status to marriage green card holder status. In other words, it is possible for a person who is technically eligible for immigrant status (marriage green card) to be denied due to the Officer’s “exercise of discretion.”
The most common instances of such discretionary denials involve cases where the applicant abused the nonimmigrant visa process within the first 30 days of entry to the USA.
How can a B2 visa Holder or ESTA Visa Waiver Visitor be Accused of “Abusing” the Nonimmigrant Visa Process?
If a person enters the United States in certain nonimmigrant (temporary) visa categories with the obvious intention of applying for permanent immigrant status (apply to get their marriage green card), their I-485 adjustment of status (AOS) application can be denied by the USCIS in the exercise of discretion.
People in certain nonimmigrant visa categories are not supposed to intend to acquire permanent status (a marriage green card) when they enter the USA. Those nonimmigrant visa categories include B-1/B-2 Visitors, F-1 Students, J-1 Exchange Visitors, E-3 Visa Holder, Q Cultural Exchange Visitors, TN Visa Holders, and ESTA Visa Waiver Visitors.
Applicants for marriage green card holders must not only prove to the USCIS that they have not acted in bad faith after their latest entry. The USCIS has adopted the “30/60/90 Day Rule” used by the Dept. of State’s Foreign Affairs Manual (9 FAM 40.63 n4) when examining events that occur shortly after entry to the USA.
Trying to Make a Change During First 30 Days of Entry?
For example, if a person applies for admission into a school or for a change in nonimmigrant or immigrant status within 30 days of entry to the USA as a B-2 visa tourist, they are presumed to have acted in bad faith. According to INA 214(b), every foreign national who files paperwork to change to a different visa category or to stay in the U.S. permanently (get a marriage green card) within the first 30 days after arriving in the U.S. is presumed to be trying to avoid the other longer procedures that everyone else has to go through.
Likewise, if a person submits their Adjustment of Status paperwork within 30 days of entry to the USA as a nonimmigrant, they are presumed to have acted in bad faith and on that basis their Adjustment of Status to a green card holder may be denied.
By filing paperwork for a change in visa status within the first 30 days, they are assumed to have had the preconceived intent to make a request for a change to a different status before they even arrived in the U.S. — and therefore they are “presumed” to have obtained or used one American visa in order to evade the normal screening process abroad for the American nonimmigrant or immigrant visa they really wanted.
Trying to Make a Change During 31-60 Days after Entry?
If the application for a marriage green card is received by the USCIS between 31 and 60 days after entry into the USA, no presumption of bad faith is made, but there is a strong suspicion that the person may have acted in bad faith. That case will be scrutinized very carefully.
A foreign national is allowed to have a general desire to remain in the U.S. (Matter of Hosseinpour, 15 I&N Dec.191 (BIA 1975)) but a fixed intent to remain in the U.S. is not allowed (Lauvik v. INS, 910 F.2d 658, at 660 (9th Cir. 1990)). Filing the Adjustment of Status paperwork to get a marriage green card within the first 60 days after the last arrival is perceived as a fixed intent to remain in the U.S. permanently.
It is up to marriage green card applicant to show that they had no preconceived intent to apply for permanent residence, pursuant to INA 214(b), because preconceived intent is a potential basis for discretionary denial of a marriage green card (Von Pervieux v. INS, 572 F.2d 114,118 (3d Cir. 1978)).
Trying to Make A Change After 60 Days?
However, if the Adjustment of Status paperwork (marriage green card application package) is received by the USCIS in the mail more than 60 days after entry to the USA, there is legally an automatic presumption is that the applicant acted in good faith.
With regard to immediate relatives, preconceived intent is not supposed to be presumed and is not supposed to be the basis for the denial of a marriage green card if it is the only adverse factor (Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980), Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981)) Matter of Battista, 19 I&N Dec. 484 (BIA 1987)).
To be safe, it is best to wait and file the marriage green card application at least 61 days (or more) after the date of entry.
Keep in mind that the USCIS still reserves the right to investigate any marriage green card case if there is evidence of wrongdoing. If a marriage green card applicant has anything in his or her past visa history that suggests that he or she may have abused the American visa process, or otherwise tried to take shortcuts, the USCIS has made it clear that they can deny such marriage green card applications in their exercise of discretion – no matter when they submitted the Adjustment of Status paperwork.
UPDATED OCTOBER 2016 | HELPFUL TIP: If you entered the USA on a B1/B2 Tourist visa and are married to a U.S. citizen, your U.S. citizen spouse should not file your marriage green card paperwork with the USCIS until the 61st day (or more) after your entry. In other words, in order to avoid a discretionary denial, do not file an I-485 Adjustment of Status (AOS) application during the first 60 days after arriving in the USA.
Call Attorney Danielle Nelisse at (619) 235-8811 in San Diego, California if you want to discuss legal representation for your marriage green card case – there is no charge for a brief telephone call or email questions.
When you call the office, just ask to speak to Danielle Nelisse.
Other Immigration Questions Concerning Same Sex Married Couples:
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Exactly what happens at a marriage green card interview?
Tips on how to help your helping your partner adjust to America during the Adjustment of Status process.
What if my spouse entered the USA legally, but overstayed their visa?
What if my spouse is HIV positive?
Is “coming out” important to the Immigration Officer who conducts the marriage green card interview?