Spouse Enters on Visitor's Visa, Applies for Green Card

[calenwen 3]

Hi guys,

So our story in brief: met my (British) husband in Wales three years ago, married in Wales a year later. We've been married two years now, and have spent that time in Europe and the last year in China teaching English. We've just returned to the States - him on a three month visitor's visa/tourist visa. Will we have any problems applying for the green card? Have just started looking into this and trying to wrap my mind around it all in a single evening is quite baffling!

I've read that it's considered fraud for the potential immigrant to enter on a tourist visa, marry, and then apply for a green card. But what about if we're already married? Would they really turn down our application simply because of the terms he entered under? (We've only been here a week, so we have nearly three months before he overstays.)

Thanks in advance for your help!

[celinayfran 2]

I've read that it's considered fraud for the potential immigrant to enter on a tourist visa, marry, and then apply for a green card.

This is true. Entering as a tourist with the intention of immigrating is illegal and considered fraud. Considering that you are already married, you can start the process but it will not be completed by the time the 3 month tourist visa expires for your spouse to able then adjust status once approved. I would never suggest overstaying the tourist visa, period. My feeling is that you could start the process, your spouse leaves before the visa expires and finish the process accordingly, perhaps spending a few months part unless you are able to accompany your spouse while you wait it out.

Somebody else with more experience with this particular scenario may have better advice to offer.

Best of luck!!!

[Scott & Ale 3]

What questions did the CBP officer ask your husband when coming into the US? It probably doesn't matter but but the key is whatever he said then needs to be followed or that is considered fraud. If he told CBP when arriving he was immigrating and they let him in on his visitor/tourist visa then you actually may have a leg to stand on to keep him here, but that is almost like a dream situation.

[bsd058 296]

Hi guys,

So our story in brief: met my (British) husband in Wales three years ago, married in Wales a year later. We've been married two years now, and have spent that time in Europe and the last year in China teaching English. We've just returned to the States - him on a three month visitor's visa/tourist visa. Will we have any problems applying for the green card? Have just started looking into this and trying to wrap my mind around it all in a single evening is quite baffling!

I've read that it's considered fraud for the potential immigrant to enter on a tourist visa, marry, and then apply for a green card. But what about if we're already married? Would they really turn down our application simply because of the terms he entered under? (We've only been here a week, so we have nearly three months before he overstays.)

Thanks in advance for your help!

It all comes down to intention. If he was planning on staying when he entered on a tourist visa, then yes, he committed fraud during the application process. He stated he was entering merely to visit essentially when he actually intended to immigrate. This is lying and is intentional. It could also change the decision of the visa granting authority. Had they known that your husband had the intention of immigrating, they would have declined the tourist visa and suggested that he go the immigration route to enter the US.

If it was his intention to enter merely to visit and then return to his origin, and then after he entered he decided he wanted to stay, then you can petition and adjust his status and it would not be considered fraud because he had the original intention to visit, but then changed his mind while in the US.

So it all comes down to intention at the time of entry and during the tourist visa application.

[calenwen 3]

Hey guys, thanks for your quick responses! Really appreciate it!

It all comes down to intention. If he was planning on staying when he entered on a tourist visa, then yes, he committed fraud during the application process. He stated he was entering merely to visit essentially when he actually intended to immigrate. This is lying and is intentional. It could also change the decision of the visa granting authority. Had they known that your husband had the intention of immigrating, they would have declined the tourist visa and suggested that he go the immigration route to enter the US.

If it was his intention to enter merely to visit and then return to his origin, and then after he entered he decided he wanted to stay, then you can petition and adjust his status and it would not be considered fraud because he had the original intention to visit, but then changed his mind while in the US.

So it all comes down to intention at the time of entry and during the tourist visa application.

So you said it all comes down to intention - which is completely arbitrary, right? I mean, how would they ever prove otherwise if we said it wasn't originally his intention to immigrate and then he decided he wanted to stay while here and we decided to go for it...?

Neither side has proof, so do they have to believe us?

Does anyone know of any experiences of this sort? What has happened?

[Penguin_ie 5,986]

*** Moving from CR-1 spousal visa to AOS from Tourist visa as that is what the OP is considering ****

[calenwen 3]

This is true. Entering as a tourist with the intention of immigrating is illegal and considered fraud. Considering that you are already married, you can start the process but it will not be completed by the time the 3 month tourist visa expires for your spouse to able then adjust status once approved. I would never suggest overstaying the tourist visa, period. My feeling is that you could start the process, your spouse leaves before the visa expires and finish the process accordingly, perhaps spending a few months part unless you are able to accompany your spouse while you wait it out.

Somebody else with more experience with this particular scenario may have better advice to offer.

Best of luck!!!

Omg, I can't bear a separation. We have done crazy things to avoid this, and I wouldn't let it happen now.

There is a section on the I-130 where you mark how your relative (the applicant) arrived in the US, one of the options is visitor, and then the date it will expire....? Ack. In the UK, there is a law that prevents the separation of spouses if you are legally married and living in the country, even if you have overstayed and screwed up on visas, etc. Do you know if we have something like that in the States?

[ChrisPG 30]

It looks like you have been given some mis-information.

Firstly, intent alone cannot be the basis of an AOS denial-- there needs to be other factors involved. Many, many people adjust their status successfully from a B2 visa or even the VWP.

Simply file the I-130/AOS package. Once you file the package, your spouse enters a new status commonly referred to as "pending status" which is a legal status under the color of US law and no lawful presence or overstay is incurred while your case is adjudicated.

[bsd058 296]

Hey guys, thanks for your quick responses! Really appreciate it!

So you said it all comes down to intention - which is completely arbitrary, right? I mean, how would they ever prove otherwise if we said it wasn't originally his intention to immigrate and then he decided he wanted to stay while here and we decided to go for it...?

Neither side has proof, so do they have to believe us?

Does anyone know of any experiences of this sort? What has happened?

It is not arbitrary. Maybe you meant that it would be difficult to prove intention.

If your husband did not have a return ticket or if he had all of his property in the US and no ties to other countries and decided to stay, they could claim that it was his intention all along to stay. You would come back and state that it was not his intention to stay and show proof on your end of ties to another nation (rental agreement, vehicle registration, etc.) and in the end it's up to the adjudicator to decide whether or not to believe you.

[ChrisPG 30]

It is not arbitrary. Maybe you meant that it would be difficult to prove intention.

If your husband did not have a return ticket or if he had all of his property in the US and no ties to other countries and decided to stay, they could claim that it was his intention all along to stay. You would come back and state that it was not his intention to stay and show proof on your end of ties to another nation (rental agreement, vehicle registration, etc.) and in the end it's up to the adjudicator to decide whether or not to believe you.

With all due respect the USCIS doesn't need to prove anything, the burden of proof is on the applicant-- but this is moot for this situation, since there is nothing to prove, except for a bona-fide marriage-- no different than most other AOS applicants.

[bsd058 296]

With all due respect the USCIS doesn't need to prove anything, the burden of proof is on the applicant-- but this is moot for this situation, since there is nothing to prove, except for a bona-fide marriage-- no different than most other AOS applicants.

With all due respect, I didn't say USCIS needed to prove anything.

[Anh map 2,098]

He entered as a tourist/visitor. That is non-immigrant admission to the US. If his true plan was to remain in the US and apply for permanent residence, then he misrepresented his intention. Misrepresented is a nicer way to say he lied. Lying to an immigration official can have dire consequences.

Typically there are no repercussions in circumstances similar to yours. Anyone telling you that there is no possible problem is not being truthful. But always remember that it is your lives that will be impacted by your decisions, not the advice giver(s). Gather all the information and make an informed decision.

[NigeriaorBust 4,087]

For someone to use VWP or a visitors visa with the intent on staying and applying for AOS show that they lack a basic respect of US laws and they don't deserve the right to stay. Do they get away with it , usually. Are they good moral people definately not.

[HelenBradley 28]

Omg, I can't bear a separation. We have done crazy things to avoid this, and I wouldn't let it happen now.

There is a section on the I-130 where you mark how your relative (the applicant) arrived in the US, one of the options is visitor, and then the date it will expire....? Ack. In the UK, there is a law that prevents the separation of spouses if you are legally married and living in the country, even if you have overstayed and screwed up on visas, etc. Do you know if we have something like that in the States?

Are you sure your husband has a visitors visa, rather than coming here on the VWP?

The reason I ask is because I remember that there was a rule that you could not appeal a denial if you were here on VWP. I don't know if that still exists, but it's something I'd check into if I were you. I don't know if he is on VWP, since you said visitors visa. But I wonder why he would get a visa for 90 days, unless he was previously denied entry to the US? You should also try and think about what he was asked by CBP when he arrived, and what he said. That can be important.

Good luck.

A separation is not the end of the world, sometimes it's necessary to do what's best for your long term future. And with immigration...making sure you can stay together long term is far more important than being together in the short term. However, it seems like AOS from VWP or tourist visas are often approved and I wish you all the best.

Helen

[Sandra G. 5,016]

Anh map is right. Most of the time people in his situation adjusted their status without problem. Just keep in mind he/she can get a tough adjudicator and he can consider misrepresentation. Good luck.

Edited July 11, 2012 by sandranj