marriage on tourist visa

[am1996 0]

It is in the FAM, indeed. Please see 9 FAM 40.63 N4.7 - N4.7-4.

Here's a quote:

9 FAM 40.63 N4.7-2 Within 30-Days

(TL:VISA-313; 08-27-2001)

If an alien violates his or her nonimmigrant status by adjusting status or

by seeking unauthorized employment within 30 days of entry, the consular

officer may presume that the applicant misrepresented his or her intention in

seeking a visa or entry.

9 FAM 40.63 N4.7-3 After 30 days But Within 60

(TL:VISA-313; 08-27-2001)

If an alien initiates such violation of status more than 30 days but less

than 60 days after entry into the United States, no presumption of misrepresentation

arises. However, if the facts in the case give the consular officer

reasonable belief that the alien misrepresented his or her intent, then the

consular officer must give the alien the opportunity to present countervailing

evidence. If the officer does not find such evidence to be persuasive, then

the consular officer must submit a comprehensive report to the Department

(CA/VO/L/A) for the rendering of an advisory opinion.

9 FAM 40.63 N.4.7-4 After 60 days

When violative conduct occurs more than 60 days after entry into the United States, the Department does not consider such conduct to constitute a basis for an INA 212(a)(6)©(i) ineligibility.

Now, I realize full well that the FAM is a Department of State ("DOS") document and, as such, that it is not binding on USCIS. At the same time, it is quite reasonable to assume that the USCIS adjudicators are quite familiar with DOS' presumptions specifically stated in FAM and are highly unlikely to act in contravention of those presumption. In other words, although DOS and USCIS serve different roles, when it comes to visa fraud, the types of evidence, the amount of evidence and the burdens of proof are almost exactly the same regardless of whether you are appearing before a consular officer or a USCIS adjudicator, As such, DOS' presumptions are likely to serve as at least persuasive authority for USCIS' adjudicators.

Edited January 17, 2007 by am1996

[Kez/JWolf 6]

Well I can tell you thet USCIS do not apply that rule when approving AOS for someone who got married before the 30 days....

Kez

[am1996 0]

Well I can tell you thet USCIS do not apply that rule when approving AOS for someone who got married before the 30 days....

How do you know that? By the way, it is not a rule but is a rebuttable presumption -- even if you do get married in the first 30 days, you can overcome and rebut the presumption with evidence.

Just so we are clear, I am certainly not advising people to fraudulently procure visitors' visas if they intend to get married and subsequently adjust status. What I am saying, however, is that if there was no fraudulent intent at the time the nonimmigrant visa was obtained, judging by the above sections of the FAM as well as by common sense, demonstrating the lack of fraudulent intent would be a lot easier if the marriage occurs after the 60 day period.

[kitkat1 5]

Right - but this does not address those who entered on a visitor visa adjusting to spousal visa which I assume does not constitute "violative conduct". . .

Common sense would say that demonstrating the lack of fraudulent intent would be a lot easier if the marriage occurs after the 60 day period, but there does not appear to be a hard and fast rule that adjudicators follow.

[am1996 0]

Right - but this does not address those who entered on a visitor visa adjusting to spousal visa which I assume does not constitute "violative conduct". . .

It DOES constitute violative conduct -- please take a look at 9 FAM 40.63 N4.7-1a(3) that SPECIFICALLY directs consular officers to apply the 30/60 day rule if aliens enter the country on B2 and then violate the status by marrying and taking up permanent residence.

Common sense would say that demonstrating the lack of fraudulent intent would be a lot easier if the marriage occurs after the 60 day period, but there does not appear to be a hard and fast rule that adjudicators follow.

Of course there is no hard and fast rule and the FAM does not establish such rule. What it does establish is a PRESUMPTION (or the lack thereof) which can be quite persuasive in USCIS adjudications.

Once again, you can always produce evidence to overcome a rebuttable presumption against you. If, however, you can refrain from taking action that may give rise to the presumption against you (such as, to the extent possible, not getting married in the first 30 days), you will make your case easier and more persuasive.

Edited January 17, 2007 by am1996

[Kez/JWolf 6]

I was married within 30 days of arriving on a VWP I was never asked about my intentions at arrival or to produce evidence that did not intend to remain on entry.... and I have spoken to many others who have never been asked to produce evidence of their intent to return to their home country... and who did not follow the 30-60-90 day rule...

Kez

[am1996 0]

I was married within 30 days of arriving on a VWP I was never asked about my intentions at arrival or to produce evidence that did not intend to remain on entry.... and I have spoken to many others who have never been asked to produce evidence of their intent to return to their home country... and who did not follow the 30-60-90 day rule...

I am sure that there are countless others who are in the same boat. At the same time, if you are aware of the presumption (you continue to call it a "rule" which is incorrect) and do not have compelling reasons to get married in the first 30 days, you would be well advised to wait until the presumption is no longer against you.

We often say that perception quite often becomes reality in the eyes of CBP, USCIS, consular officials, etc... Even if the presumption did not exist, if you were to enter the country on a B2 and then got married the next day, do you honestly believe that your AOS petition would be just as strong as that of a B2 who didn't get married until day 80? The FAM presumption is simply a reiteration of a rather common sensical approach to the issue -- unless you have evidence to the contrary, the longer it's been between the time you made the nonimmigrant declaration and the time you violated that declaration by getting married, the more likely it is that changing circumstances rather than fraudulent intent caused the change. What is there to argue about?

[Kez/JWolf 6]

I think you are confusing things a little.... there is nothing to stop anyone getting married on a b2 visa the quote you have given is about filing for AOS after getting married.... not about getting married itself... there are thousands of tourists who come to the USA and get married the next day or the day after... it only applies if you then go on to file for AOS and remain... so by comming on a B2 and getting married you have not violated anything.. you would only violate your non-immigrant status if you file for AOS and remain.... it is unlikly you would be filing for AOS in less than 30 days of arrival... but possible I guess...

If you re-read your quote it only talks about AOS not the act of getting married...

Kez

[am1996 0]

If you re-read your quote it only talks about AOS not the act of getting married...

It's an interesting and a reasonable way to interpret the FAM, although I do not see anywhere where it talks about AOS being the trigger to the violation. What it does say is that "marrying and taking up permanent residence" violates your B2 status/visa. 9 FAM 40.63 N4.7-1(a)(3). Filing of the AOS petition undeniably evidences the fact that the alien has "taken up permanent residence" but it does not establish the date that the alien has done that. You "take up permanent residence" when your conduct and other actions evidence you intent to reside in the US. For instance, if you get married in the US and make no plans to go back to your home country, you've taken up permanent residence regardless of the fact that you have yet to complete the AOS application. Likewise, if you get married and then immediately complete a joint tax return where the alien spouse elects to be treated as a US resident for tax purposes, then you've clearly "taken up permanent residence."

In other words, although your reasoning above might support certain fairly unsual situations where people get married and are going back and forth on staying here and adjusting status or going back to the home country but eventually decide to AOS, in the vast majority of cases the USCIS is likely to take the position that the alien has violated his/her B2 on the day he/she got married rather than the day the AOS was filed.

Edited January 17, 2007 by am1996

[ChristinaM 0]

Plus you probably won't see many people here since we're all doing things the legal way.

I'm sorry, but it's this kind of statement that makes me so mad.

There is nothing illegal about adjusting from tourist status, or F-1 status, or P-1 status, or J-1 status, provided that the intent on entry was not to immigrate to the US on that given entry.

Yes, it is a "loophole" - particularly for those on a B-2 or the VWP. However, it's really not very difficult to find out how to do it from the USCIS website, which implies that it's just as valid a way of immigrating for those under a specific set of circumstances as any other is.

As for the 30-60-90 day thing, have a hunt through Meauxna's posts. I know she's talked about it more than once. I have a feeling Boiler may also have done so, and I know there's been some debate about it over on BritishExpats. Just for poop and giggles, I entered the US on May 23rd and got married on June 16th. I have a green card, so it can't be that much of a "presumption", or whatever we're calling it today.

For the record, I was not intending to immigrate when I entered the country, nor was I intending to "defraud" anyone. I was actually advised to marry and adjust by an officer at my local DO, having already filed a K1. Yes, I feel bad for those of you who have a wait to get a visa. However, that doesn't make your method of immigrating any more valid than that taken by Kezzie and I, and countless others.

[ChristinaM 0]

In other words, although your reasoning above might support certain fairly unsual situations where people get married and are going back and forth on staying here and adjusting status or going back to the home country but eventually decide to AOS, in the vast majority of cases the USCIS is likely to take the position that the alien has violated his/her B2 on the day he/she got married rather than the day the AOS was filed.

I think that's complete BS, thrown out to support a narrow point of view. Please provide some evidence of how you can see inside the heads of the USCIS officers, or even evidence that that belief is held by the USCIS.

[Kez/JWolf 6]

Thank you Christina.... good to see you around.. hope all is well..

Kez

[ChristinaM 0]

Fine thanks Kez, just pulling my hair out with work. But you know me, couldn't let that one lie.....

If I had any sense, I'd stay out of it!

[Kez/JWolf 6]

I know I am the same.... I think people continue the "Its not legal" because it makes them feel better all because they have had to be apart from their loved one and we did not....

Anyway we have moved into our new Condo and things are good... but I am very busy at work these days... I am still on the same phone number...

Kez

[kitkat1 5]

I consider Mo's word gold:

http://www.visajourney.com/forums/index.ph...=42056&hl=#

Some lawyers do still advise the 'wait 30 or 60 or 90 days before doing X' but you should understand that that is based on their personal idea of what is 'safe' and is not actually based on a law. Some people (including lawyers!) have misunderstood the paper that guideline was originally written for.

It's not good advice to give to someone, that is, waiting does not make someone 'safe' in immigration