inside immigration information about marriage green cards and work visas in America
Updated May 2018
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 a 90 day ESTA Visa Waiver tourist visa. 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, Americans are already married to a foreign spouse, but due to their jobs, they both are living separately and their spouse visits using a B2 tourist visa or an ESTA tourist visa waiver.
During the tourist visit, the couple may change their mind about being separated, and decide they want to file a marriage green card application and live in the USA permanently instead of being separated for such long periods of time.
Marriage green card 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 “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.
Discretion means the law gives them the freedom to say either yes or no based on their assessment of the case.
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.” Why?
The most common instances of such discretionary denials involve cases where the applicant “abused” the nonimmigrant visa process within the first 30-60 days of entry to the USA.
It is considered “visa abuse” in some circumstances if a person enters the United States in certain non-immigrant (temporary) visa categories with the obvious intention of applying for permanent immigrant status (apply to get their marriage green card).
People in certain non-immigrant visa categories are not supposed to intend to acquire permanent status (i.e. intend to get married and apply for a marriage green card) on the day they enter the USA. Those non-immigrant 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.
If the immigration officer decides that visa abuse of those visas occurred because the applicant got married or filed their marriage green card application too soon after entering the USA, the immigration officer can deny their I-485 adjustment of status (AOS) application.
Let’s say a person enters the USA as a B2 visa tourist, and within the first 30 days applies for admission into a school, and then files the paperwork to request that their visa status be changed from B2 tourist to F1 Student.
Or let’s say a person enters the USA as a B2 visa tourist, and within the first 30 days gets married to a US citizen and files the paperwork to request that the visa status be changed from a B2 tourist to a marriage green card holder.
In these situations, because they have asked for a change of status from one non-immigrant visa to another (B2 to F1) or an adjustment of status (AOS) from non-immigrant visa to immigrant visa (B2 to green card) within 30 days of entry to the USA, they are legally “presumed” to have acted in bad faith.
According to INA 214(b), every foreign national who files paperwork to change status to a different visa category or to adjust status 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 longer procedures that everyone else has to go through.
In other words, at the marriage green card interview, the USCIS Immigration Officers are allowed to “presume” the marriage green card applicant acted in bad faith and on that basis, may deny their request to adjust status to a green card holder.
If you are in a situation where you got married to a US citizen within the first 30 days of arriving in the USA in one of the visa categories listed above, please contact an Immigration Attorney who specializes in 30 day cases (I do not).
If the foreign national got married to a US citizen, and the I-485 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)).
It is up to the 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)).
If you are in a situation where you got married to a US citizen within 31-60 days of arriving in the USA in one of the visa categories listed above, please contact an Immigration Attorney who specializes in 31-60 day cases (I may consider the case, depending upon the circumstances).
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 legal presumption is that the applicant acted in good faith.
With regard to immediate relatives (spouses) who file their AOS more than 60 days after their last entry into the USA , preconceived intent is not supposed to be presumed and it 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)).
If you are in a situation where you got married to a US citizen after 60 days of arrival in the USA, please contact an Immigration Attorney who specializes in 60 day cases (I do).
If a foreigner enters the USA in one of the visa categories listed above, and does not marry or file the I-485 Adjustment of Status (AOS) application until the 91st day (or after), the immigration officers are not allowed to presume bad faith and this is the best case scenario.
No presumption of willful misrepresentation arises if the foreign national files their marriage green card AOS application more than 90 days after entry into the USA.
IMPORTANT NOTE FOR ESTA VISA WAIVER ENTRANTS: As you know, if you wait until after 90 days to file your AOS, you will be out of status. Please consult with an immigration attorney who handles AOS cases for ESTA Visa Waiver overstays (I do not). There are special rules for your type of case (see link below). I REPEAT; I DO NOT HANDLE ESTA Visa Waiver cases.
Keep in mind that the USCIS reserves the right to investigate any marriage green card case to discover 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.
In September 2017 the Dept. of State updated the Foreign Affairs Manual (called “FAM”) to institute a 90 day rule (instead of the 30-60-90 day rule). If you are wondering what AO means after reading the rule, it means “Advisory Opinion.”
What is an example of violating the 90 day rule? One example would be if person applied for a B1 Visa by submitting documentation to the Consular Officer (or airport Immigration Officer if they already had the B1/B2 visa stamp in their passport) proving they had a business purpose in the US, and upon entry, did not conduct any business activities whatsoever but instead applied for change of status from B-1 Visa to F-1 Student Visa. That person would most likely be seen as misrepresenting that there was a business purpose to visit the US when there was none.
Be Careful Filing for Adjustment of Status. The new FAM language suggests that the Dept. of State is targeting aliens who enter through the Visa Waiver Program or on a B-1/B-2 visitor visa and then apply to adjust to green card status through marriage to a green card holder.
However, so far, the USCIS (which is run by the Dept. of Justice and not the Dept. of State) has not adopted the 90 Day Rule and the USCIS’ Adjudicator’s Field Manual has not been updated to be consistent with the new FAM guidance. Please be aware that the USCIS can adopt the 90 day rule at any time.
Moreover, the Board of Immigration Appeals have established that in the case of adjustment of status of immediate relatives, the adverse factor of “preconceived intent,” by itself, is outweighed by the equity of the immediate relative relationship itself. See Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980) and Matter of Ibrahim, 18 I. & N. Dec. 55 (BIA 1981).
Nonetheless, aliens who have entered the U.S. on a B or F visa, or any other nonimmigrant visa that does not allow immigrant intent, or the ESTA Visa Waiver, should be cautioned regarding the risks of filing an adjustment of status, extension of status, or change of status within 90 days after entry.
Furthermore, even if such filings occur after 90 days after entry, the alien may need to demonstrate that an event occurred which caused them to change their original plans and desire to change their immigration status.
So far, all of my adjustment of status cases (BUT I DON’T HANDLE ESTA VISA WAIVER CASES) have passed so long as the I-485 Adjustment of Status paperwork was submitted 61 days or after (regardless of date of marriage) AND there was no evidence (on social media, etc.) that the marriage was planned prior to the person entering the USA.
Waiting 90 days to marry and file the I-485 Adjustment of Status is difficult if you entered the USA using a 90 day ESTA Visa Waiver. If you wait to get married and file your I-485 Adjustment of Status (AOS) application until the 91st day, you will be out of status.
There are special rules for ESTA entrants who overstay their 90 days and then request a marriage green card. To learn more, please read the USCIS Policy Memorandum PM-602-0093 dated November 14, 2013 which deals with this issue.
If you are in a situation where you are in ESTA Visa Waiver status and you wish to marry a US citizen and ask for a marriage green card, please contact an immigration attorney who specializes in this type of case (I do not). I REPEAT; I DO NOT HANDLE ESTA VISA WAIVER CASES. TIP: It is ok to ask an immigration attorney how many ESTA Visa Waiver overstay AOS cases they have handled.
When you call the office, just ask to speak to Danielle Nelisse.
Other Immigration Questions Concerning Same Sex Married Couples:
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?