In a previous article, we described three ways one can use to immigrate to the United States based on a marriage to a US citizen. As is clear from the article, one of the main principles in US immigration law is that one must have the appropriate visa before entering the United States. For example, if one is coming to the US to work, a working visa should be obtained before entering the US – one can not enter with a tourist visa, when the intention of the visit is not in agreement with the terms of the visa. Similarly, when one is coming to the US to get married and with the intention of staying in the US after marriage, one needs to have a K-1 visa.

In some instances, one may be able to change status after entering without the need for leaving the United States and obtaining the appropriate visa. For example, a student with a student visa who has been residing in the US for an extended period of time may be able to adjust status to a working visa or a green card by marriage without departing the United States. The determining factor in these cases is that the intention to change status took place after the person entered the United States. For example, if one enters the US with a student visa but has already planned to get married and change status, then one is committing fraud and his/her entry into the country may be denied (which may come with a ban for future entries into the country). If, on the other hand, after entering the US as a student, many months later things change and one decides to get married, then this will likely not be seen as fraud but as a legitimate change in circumstances.

According to this school of thought, one who enters the US as a tourist but who has already arranged to get married and stay, is committing fraud. (But one who is coming as a tourist and has already arranged to get married but departs according to the terms of his/her visa is OK.)

Reading the above, one would naturally wonder how the immigration services are expected to know what one’s intentions were at the time of entry. In reality, in the vast majority of cases, one who enters in the US  on a visa and gets married in good faith almost always is able to adjust status and get a green card without leaving the country.

The situation becomes more difficult when one enters the US on the visa waiver program. Changing status after entering on the visa waiver is problematic and in some cases risky, so it is generally discouraged. The problem when a person enters on the visa waiver is that the person entering forfeits any rights to appear before an immigration judge and essentially accepts his/her deportation should he/she exceed the period of time allowed in the US, which is normally 90 days. Thus, sometimes unexpected outcomes take place when adjusting from the visa waiver. There are cases in which the prospective immigrant enters the US on the visa waiver, gets married, applies to change status to permanent resident, ninety days pass and for one reason or another the prospective immigrant falls into the attention of the immigration services. (For example, because a police officer stopped him on the street or even when appearing for an interview with USCIS.) When one who overstayed the visa waiver comes to the attention of the immigration services, the government has the right and discretion to proceed to a fast track removal from the United States, without the need for a hearing, by using what is known as a 217 order. Anyone removed from the United States is barred from reentering for many years in the future. Thus, in the most extreme case, one who attempts to adjust status from the visa waiver may end up removed from the United States with a ten year bar to reentering. For this reason, before deciding to change status from the visa waiver, one must have a consultation with an immigration attorney and get familiar with the risks associated with adjusting status.