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Immigration Law Article:

Not so Fast – Your Intentions are Showing:

(Or the dangers of marrying while in the United States on a B Visa or Visa Waiver)

NOTE: (This article was written by an attorney at The Solomon Law Firm, P.C. in Houston, Texas ( www.thesolomonlawfirm.com ) who has personal experience in going through the process of bringing a foreign fiancée to America. We think you will find it very enlightening.)

This article addresses an issue that arises quite frequently. This article is not intended to be an exhaustive discussion of this topic. It is written as a friendly warning, because even honest, well-intentioned couples can run into serious problems just because they didn’t realize the trouble that could be created by what they were doing. If this looks like you, you would be wise to seek help from an immigration attorney who understands these issues.

Let’s begin with a simple proposition:

Unless you come here with a fiancée visa, it is illegal to travel to the United States with the intention to marry a U.S. Citizen and not return to one’s home country. If these facts are established, an application to adjust status to become a permanent resident of the United States (i.e. to obtain a green card) will almost certainly be denied.

Not only that, but you could be facing criminal charges that could result in a fine of up to $250,000.00 or imprisonment for not more than five years, or both. A lesser sanction under a different statute could result in a fine of up to $10,000.00 or imprisonment for not more than five years, or both.

As bad as those penalties are, there is another one that could be even worse. What if your new spouse is deported and banned from living in the United States?

What?

But I thought that if I entered the United States legally and then became an immediate relative of a U.S. Citizen (like becoming a spouse, for example), that I could engage in unauthorized employment in the United States and even violate the terms of my nonimmigrant visa (like staying longer that I was supposed to stay) and still be allowed to get my green card.

That may well be true, depending on the facts of a particular case, but we are talking about something different here. We are talking about lying about your intentions when you were entering the United States. We are talking about lying to obtain a benefit by evading provisions of the immigration laws. The legal way to come to the United States to get married and apply to adjust your status to become a permanent resident is to apply for a fiancée visa, or to get married and apply for a marriage visa while the alien spouse continues to reside abroad.

Oh we knew that, you say, but that takes too long! It was easy for me to come here on a visa waiver because of the country where I live, you say, or I was able to obtain a visitor visa to come to the United States. Now that I am here, I got married, and the last thing I want to do is go back to my home country and apply to adjust my status so that I can move to America to be with my spouse.

But now that I know about the problem, you think, I will just tell anyone who asks that I never intended to get married and stay in the United States. Sure, I will tell them, somewhere in the back of my mind I suppose there was a thought that we might possibly get married while I was visiting here, but I never intended to stay here. I always intended to return to my own country. But now we are so much in love and my spouse begged me to stay after we got married, so that is the only reason I want to file to adjust my status without leaving the United States.

Oh really?

Let’s examine a few things. First of all, there is a presumption that every foreign national intends to immigrate to the United States when they come here. It is only after they convince the particular immigration authority involved that they have no immigrant intent that they can obtain a nonimmigrant visa.

And what is one of the primary ways that one can overcome that presumption for many visa categories? It just happens to be maintaining a residence abroad with no intention to abandon it. The B visa category, which covers business or pleasure visits to the United States, is one visa category where the residence abroad factor is of paramount importance.

While that general requirement may be relaxed in order to allow an alien to visit family members or even to visit a fiancé or spouse in the United States, the intent of the alien must still be to return to his or her home country.

Well, you say, no one knows what I was thinking. That is actually true, and we may be able to help you with your case. But your actions may be a powerful indication of what you were thinking. For example:

• Did you abandon your residence abroad when you came to America?
• Did you quit your job in your home country before you came to America?
• Did you get married within days of stepping off the plane when you arrived in America?
• Did you file for a green card shortly after arriving in America?
• Did you:
    > ship all of your clothes here,
    > arrange to have your utilities and telephone service terminated,
    > resign from your fitness club,
    > close your bank accounts
    > have a going away party with family and friends?
    > have someone in America find a job for you here?
• Oh yes, here is another biggie:
    > did you exchange love letters (emails) with your former fiancée, now spouse, where the two of you planned your life together in America, leaving a clear electronic trail that you had no intention of returning to your home country to adjust status after you got married in America?

While the focus of this article is on B visas, the same proposition applies to those who come here on other types of visas that require non-immigrant intent.

Now the fact is that the Department of State has developed a way of dealing with preconceived intent issues, and USCIS has followed those rules. An experienced immigration lawyer knows those rules and the presumptions involved. Our strong suggestion is therefore that you would be foolish to try to handle this problem without the help of an experienced immigration lawyer. You don’t want to go for an interview and instead of being interviewed, end up in handcuffs and put in immigration jail until you are put on a plane when you are deported.

Just give us a call or send us an email and we will schedule a time to get the details of your situation and talk about how we can help you.

©2013 Lee Solomon

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