Marrying a U.S. Citizen on a Tourist Visa: Key Considerations

Marrying a U.S. citizen while on a tourist visa (including ESTA) can be a viable option for some couples, but it involves navigating complex immigration laws and procedures. This blog post aims to provide a comprehensive overview of the legal considerations, process, and potential challenges associated with this scenario. Whether you're considering adjustment of status or consular processing after marriage, understanding the relevant immigration laws and requirements is crucial.

What Does U.S. Immigration Law Say About Marrying on a Tourist Visa?

Key Legal Considerations:

Entering the U.S. on a tourist visa (B-2) or through the Visa Waiver Program (ESTA) with the intent to marry and remain in the country can raise legal issues related to visa fraud. U.S. immigration law requires that visitors on tourist visas must have the intent to return to their home country after their visit. Here are the main legal aspects to consider:

Intent at Entry: The primary concern is whether the non-U.S. citizen intended to marry and stay in the U.S. at the time of entry. If this intent existed, it could be considered visa fraud, leading to potential denial of future immigration benefits.
Adjustment of Status Eligibility: A non-citizen can marry a U.S. citizen while in the U.S. on a tourist visa and apply for adjustment of status (Form I-485). However, this process requires proving that the initial intent was not to immigrate.
Consular Processing: Alternatively, the non-citizen can marry a U.S. citizen, leave the U.S., and apply for a spousal visa through consular processing in their home country.

What Are the Eligibility Criteria for Adjustment of Status?

Eligibility Requirements:

To adjust status from a tourist visa to a permanent resident (green card holder) after marrying a U.S. citizen, the following criteria must be met:

Lawful Entry: The applicant must have entered the U.S. legally with a valid visa or through the Visa Waiver Program.
Marital Relationship: The marriage to the U.S. citizen must be legally valid and genuine, not solely for immigration benefits.
No Immigration Violations: The applicant should not have overstayed their visa or violated terms of their admission.

The legal basis for these requirements can be found in the Immigration and Nationality Act (INA) § 245(a) and relevant sections of the Code of Federal Regulations (CFR), including 8 CFR § 245.1.

How to Apply for Adjustment of Status?

Step-by-Step Process:

Marriage: Legally marry your U.S. citizen partner. Ensure you have a valid marriage certificate.
File Form I-130: The U.S. citizen spouse files Form I-130, Petition for Alien Relative, to establish the relationship with USCIS.
File Form I-485: Concurrent with or after the I-130, file Form I-485, Application to Register Permanent Residence or Adjust Status. This form is submitted to USCIS, along with supporting documents like proof of lawful entry, marriage certificate, and evidence of a bona fide marriage.
Attend Biometrics Appointment: USCIS will schedule a biometrics appointment for fingerprinting and background checks.
Interview: Attend an interview with USCIS, where both spouses are usually required to demonstrate the validity of the marriage.
Receive Decision: USCIS will issue a decision on the adjustment of status application. If approved, the applicant receives a green card.

What Are the Common Challenges and Considerations?

Potential Issues and FAQs:

Intent and Timing: If marriage and adjustment are pursued soon after entry on a tourist visa, USCIS may scrutinize the case for preconceived intent. It's advisable to wait at least 90 days after entering the U.S. before marrying, as per the "90-day rule," which helps mitigate suspicion of visa fraud.
Travel Restrictions: Once Form I-485 is filed, leaving the U.S. without advance parole can result in the application being deemed abandoned.
Financial Sponsorship: The U.S. citizen spouse must file Form I-864, Affidavit of Support, to show they can financially support the immigrant spouse.
Potential Denials: Failure to prove a bona fide marriage or inability to overcome the presumption of preconceived intent can result in denial.

What Are the Practical Tips and Recommendations?

Actionable Advice:

Document Everything: Keep detailed records of your relationship, such as photos, correspondence, joint financial accounts, and affidavits from friends and family.
Seek Legal Counsel: Consulting with an experienced immigration attorney can help navigate complex issues and ensure compliance with all legal requirements.
Stay Informed: Regularly check the USCIS Policy Manual and updates for any changes in procedures or requirements.
Consider Timing: If there is any doubt about preconceived intent, consider marrying and then processing through consular channels outside the U.S.

What Are the Next Steps?

Clear Call-to-Action Guidance:

Evaluate Intent: Reflect honestly on the intent at entry and whether adjustment of status is the best path forward.
Consult an Attorney: Schedule a consultation with an immigration attorney to discuss your specific situation and receive personalized advice.
Prepare Documentation: Begin gathering necessary documents for Form I-130 and Form I-485 applications.
File Applications: Proceed with filing applications as advised by your attorney, ensuring all forms and fees are up to date.
Monitor Status: Keep track of your application status through the USCIS website and be prepared for any interviews or additional requests for information.

In conclusion, while it is possible to marry a U.S. citizen on a tourist visa and pursue immigration benefits, it requires careful planning and adherence to immigration laws. For personalized advice and the latest updates, consulting with an immigration attorney is highly recommended.

About This Post

This analysis was inspired by a public discussion on Reddit: https://reddit.com/r/immigration/comments/1q6t88p/can_a_non_us_citizen_marry_a_us_citizen_on_a/

Immigration law is complex and constantly evolving. While this post provides general information based on current law and policy, every situation is unique.

Schedule a consultation

This post provides general information and is not legal advice. Laws can change and your facts matter. To get advice for your situation, schedule a consultation with an attorney.

Schedule a consultation

This post provides general information and is not legal advice. Laws can change and your facts matter. To get advice for your situation, schedule a consultation with an attorney.

Schedule a consultation

Marrying a U.S. Citizen on a Tourist Visa: Key Considerations