Des

Hi all,

one of my European friends is currently in the US visiting her old
highschool host family, her friends and her longterm boyfriend.

She's been here for six weeks, and he doesn't want to let her go back.
In fact, he proposed yesterday, and they're so in love they would like
to get married in a couple of weeks.

She's here on a 90-day tourist visa, but was asked a litany of
questions at entry - why she was coming to the US ('visiting my host
family and highschool friends'), whether she was here to find a job
('no'), whether she had a boyfriend ('yes'), whether they intended to
get married ('no'), and whether she was planning on having any
children soon ('no'). At that point, he asked her the same questions
again - backwards this time, receiving the same honest answers.

Of course, she didn't know at that point that he would ask her to
marry him.
And that they'd like her to stay (she's a college student so it's not
difficult for her to not re-enroll next semester).

They've asked me for advice as I know the process (I went through the
final stages of the greencard process in 2001/2). However, it seems to
me that a lot has changed since, and I have no idea about marriage on
a tourist visa and how Homeland Security treats such marriages these
days.

What is the worst that can happen to her if they get married in three
or four weeks and then file for AOS?

I'm glad to see both of them so happy together but I'm worried about
any legal implications that might turn up at the time of the AOS
interview. She's never had any problems with INS or overstays or so
before but has come to the US every summer to visit her friends.

Does anyone have an idea about what could happen if they get married
now - worst case scenario, and best case scenario? Where can she read
up on some information - any good websites? I just don't want them to
get into any kind of legal trouble!

I'm thankful for any advice you can give me.
- Des

mrsm

Suggest that she return home unmarried and have her boyfriend file for fiance visa.

http://www.immigration.gov/graphics/howdoi/fiance.htm

I don't know the worst case scenerio, but as boyfriend proposed on spur of the moment, have they really thought everything through, finances, her going to college here or working etc.

People do marry on tourist visas. But it is considered fraud I believe especially as she told the officer she wasn't getting married whether she knew it or not.

lairdside

Firstly, I agree that it sounds a little "tricky" and that the fiance(e) visa would be the safe option.

I would like to note though that presuming the OP has correctly stated the questions as asked at POE that the officer did not ask the lady involved whether or not she was getting married. They asked her if she "intended to get married".

If the couple involved, knowing that they honestly did not intend that they marry and that the fiancee remain in the US at the time of entry, should really want to consider this among their options, I strongly feel that they should consult with an immigration attorney.

ukemigrant

It's not considered fraud, otherwise you would not be given the opportunity to adjust status. If she came intending to get married, but said she wasn't getting married, that's fraud. But she came not intending to get married, was asked out of the blue and said yes.

That's my reading of the situation, as published in the thread....

Sam.

SanBernardino

I also don't understand why (as presented in the thread) this is such a tricky situation. Isn't this what the AOS is for -- adjusting from non-immigrant status? I am no expert, but it seems to me that she should just document as well as possible her original intent to return (air ticket, college enrollment, etc.) and her lack of knowledge of his decision to propose (affidavits of mutual friends).

That said, the K-1 and K-3 are routes which did not previously exist and reduce the need to rush into marriage. K-1 might be more attractive to her, since she could finish up business in her own country and plan a nice wedding before rushing into marriage.

Ray

What Do I Need to Enter the United States under the VWP?

To enter the U.S. under the VWP, travelers from participating countries must:

Be a citizen of a Visa Waiver Program country;

Have a valid passport issued by the participating country. Beginning October 1, 2003, the passport must be machine readable passport;

Be seeking entry for 90 days or less, as a temporary visitor for business or pleasure. You will not be permitted to extend your visit or change to another visa category under the VWP.

The last one could be enforced

SanBernardino

But the AOS is not "another visa category" is it? That said, I did think there were some visas which were not eligible for AOS. I do not know if the VWP qualifies or not. If this is a concern you might want to start a new thread to ask this question of one of the 'experts' on the group.

jnydegger

The issue here is not whether or not your friend was honest in the responses, but whether or not she wants to take the chance of being barred from entry to the US for a period of time. Whether immigration believes she did or did not intend to marry him when she came can be up to their discretion. If they want to marry while she is here on a tourist visa then they are taking a chance. The chance that they would send her back might be small but the consequences would be devastating. I would suggest going the safe route and filing for a K-1 visa.

jon capp

the worst case scenario for her is that they accuse her of having committed 'visa fraud' by entering ona visa waiver when she realy intended to marry a US citizen and therefre was not a bona fide tourist. In that case she could be denied a green card.

the so called 30/60/90 day rule provides that if she files for a green card/gets married within 30 days after entering on a tourist visa/visa waiver she has definitely committed fraud, within 60 days there is a rebuttable presumption of fraud and therefater pretty much a presumption there has been no fraud, especially after 90 days

In all probablity , form what you say, she will be OK and can adjust status in the usual way as the spouse of a US citizen--whirlwind romances do exist...

she could of course take the K-1 route to be absoultely safe, and maybe reflect on whetehr she wants to get married at all

Jonathan Capp, Esq. (british)

http://www.usvisasolutions.com
http://www.california-immigration-lawyers.com
http://www.losangeles-immigrationlawyers.com
http://www.orangecounty-immigrationlawyers.com
http://www.socalbusinesslawyer.com
http://www.sandiegoimmigrationlawyers.com

lairdside

People who enter the US under the VWP and most other visas are eligible for AOS based on their relationship as an immediate relative of a USC provided that they did not enter the US with the pre-concieved intent of doing so or are inadmissable for any other reason.

Yours truly being living proof

Shannon

I entered on the VWP from Australia, married two months later, and no-one ever blinked an eye. Granted, our AOS process was LOOONG (18 months) and I had a baby by then, but honestly, I think the whole issue of visa fraud is way overplayed by comparison with the frequency with which people adjust from tourist status on teh basis of marriage to a USC. It is by far the most common marriage-related path (not K-visas, although this group is more focused on that route).

The officer asked a number of questions relating to my intent. I answered honestly. I changed my mind, honestly.

In retrospect, I might not have been supposed to use the VWP since I had a prior conviction for a minor offence. No-one bothered about that either (although I supplied court records etc detailing the offence).

Anyway, my reading of the OP situation is that the worst case scenario is that the woman marries too hastily, regrets not having a formal wedding with her family there etc (as this could probably not be arranged without premeditation in which case fraud is more of an issue) and the relationship loses its glow once she is in the US for the long haul.

It would seem more sensible IMHO as a divorcee to accept the proposal, go home, get the guy out there and marry him sometime and then do a DCF for a visa if it is a possiblity. Alternatively, K1 if they want to marry in the US. I say this not because I think the BCIS will accuse her of fraud when she AOS's but because marriage is not the best thing to be hasty about when on a summer holiday in college.

Shannon

jon capp

Yes, crewmen who jump ship are not eligible for adjustment of status for example even if they marry a US citizen.

Otherwise, If you marry a US citizen, and as long as you did not enter without inspection, or have a conviction for drugs etc...you are eligible to adjust status to that of a permanent resident whether you entered on a visa waiver, b1/b2 or whatever

the 3 year 10 year overstay bars do not apply on this instance..

even if you comittted visa fraud they will probably ignore it or waive it.

If, however, you entered without inspection you will be required to return to your home consulate and then will be required to get a waiver of the 3 yr 10 yr bars if they apply if available.

jonathan capp Esq
www.usvisasolutions.com
www.california-immigration-lawyers.com
www.losangeles-immigrationlawyers.com
www.orangecounty-immigrationlawyers.com
www.socalbusinesslawyer.com
www.sandiegoimmigrationlawyers.com