At previous article, we described three ways in which one can immigrate to the US through marriage to a US citizen. As is evident from the previous article, one of the basic principles of immigration law in the US is that one must be provided with an appropriate visa before coming to the US. That is, if you want to work in the US, you must first be provided with a work visa, you cannot come on a tourist visa when you have other intentions. Similarly if you want to get married in the US and then stay – you must have a fiancé visa (K-1).
In some cases, a change of status is made so that the alien does not have to leave the United States. For example, a student on a student visa who has been living in the US for a long period of time can change status to a work visa or a green card through marriage without leaving the US. The basic principle in these cases is that the desire to change status arose after the alien came to the US. That is, if I come to the US on a student visa and have already planned to get married and change status, then I am committing fraud and may be denied entry at the border (which entails a blanket ban on future entry). But if, after I come to the US as a student, months later things change and I decide to get married and change status – that is reasonable and not fraud.
According to this reasoning, anyone who comes to the US as a tourist and has previously planned to marry and stay is committing fraud. (But anyone who comes as a tourist and has preplanned to get married but intends to leave on time is okay.)
Reading the above, I imagine the reader will be left with the legitimate question – where will the immigration services know what my intentions were when I came and whether I decided to marry and stay after I came or before I came. In reality, in the vast majority of cases, anyone who managed to come to the US on a visa and then got married was almost always able to successfully change status to a green card without having to leave the country.
The biggest problem is faced by anyone who comes to the US without a visa, using the visa-waiver program. Changing status from visa waiver is problematic and in some cases risky and therefore recommended to be avoided. The problem is that anyone who comes to the US on a visa waiver waives the right to appear before an immigration judge in the US, and accepts immediate deportation if they exceed the permitted length of stay – 90 days. So the following paradox can occur – the prospective immigrant comes to the US on a visa waiver, gets married, applies for a change of status to a green card through marriage, the 90 days pass and for some reason the prospective immigrant comes to the attention of the government agencies. (For example, because he is stopped by a police officer on the street or even when he shows up for an interview with immigration services.) When a person who came to the attention of government agencies on a visa waiver and for whom the authorized period of stay has expired, government agencies have the discretion, if they so desire, to proceed with the immediate removal of the person from the U.S., even if a petition for change of status is pending, without even allowing the alien the right to a hearing. Such deportation also entails a blanket ban on entry into the US for several years into the future. For this reason, before you decide to change status from the visa waiver, you should speak with an experienced immigration attorney and learn about the risks involved.
