The Hard Part

Adjustment of Status After Marriage in the U.S.

The procedure for adjustment based on marriage in the U.S. involves filing an I-130 Relative visa petition and I-485 Application to Adjust Status to Permanent Residence (and perhaps also a work authorization and travel document request as well) – and then the couple waits for the meeting with a U.S. Citizen and Immigration Services (“CIS”) examiner. The applicant remains lawfully present in the U.S. while the petition is pending. An interview between the couple and a CIS examining officer usually occurs in six to twelve months. During the interview, the examining officer will check carefully to make sure that the couple are in fact living together as husband and wife and that the marriage is not a “sham marriage” entered into for immigration rather than romantic purposes. This is standard procedure for all marriage based immigration cases, whether the marriage occurred overseas or in the U.S. But there’s another very large issue in play if the couple married while the foreign national was on a temporary visa to the U.S. The couple must convince the examiner that when the foreign national entered the U.S. and promised to stay for a limited time, s/he was not in fact planning to marry and remain in the U.S. permanently. If the officer believes that the couple planned to be married in the U.S. before the applicant’s entry on the non-immigrant visa, then this will mean that the applicant lied when (s) he promised that she will return to his/her home country when the visa was issued. In the jargon of immigration law, the Service will “retroactively impute immigrant intent” to the applicant at the time of receiving the non-immigrant visa, thereby rendering him/her ineligible to adjustment in the U.S., and subject to deportation.

The timing of the marriage relative to the date of entry of the foreign national is a critical issue in such cases. In general, the sooner the marriage after entry, the more likely the examining officer will think that the intent to marry was formed before entering the U.S. Many people refer to the “30/60/90 day rule” (sometimes the “30/60 day rule” based on the Foreign Affairs Manual standard) which roughly translates as marriage within 30 days of entry -> forget about adjustment in the U.S.; marriage between one and two months of entry -> adjustment is possible but you had better have very strong documentation of no prior intent; two to three months after entry -> getting easier; over three months -> the safest approach. However this “rule” is merely a rule of thumb as there are many other factors besides the timing of the marriage that go into the officer’s decision of whether or not to grant the adjustment. Theoretically, it’s possible to win an adjustment of a foreign national who married within days of entry. For example, let’s say Mary went to a doctor feeling nauseous the day after her entry on a B-2 visitor visa, learns that she was pregnant for the first time, and the doctor recommends that she not travel anytime soon. Mary, being from a strict family, decides to marry her American fiancé the day after her doctor’s appointment. Mary can show that she left a good job and countless other commitments behind in her home country, and that her abrupt and unplanned marriage in the U.S. caused her many problems, rather than just being a shortcut to adjustment. Not only does she have a great narrative, she has terrific documentation to support all of her claims. Further, Mary can handle herself with poise in an interview, and, she has the sense to hire Law Office of Laurie Y. Wu to help her. We believe Mary gets the visa without having to go back home and wait many months to receive a visa from a U.S. Consulate.

On the other hand, a couple who marries six months after the foreign national entered on a temporary visa with a “clear conscience”, fully intending to go home, but deciding to marry after entry, might nonetheless not be able to adjust status if they can’t come up with the documentation needed to convince the examining officer that intent was formed after entry. In other cases (often!), couples shoot themselves in the foot by inadvertently including in their petitions information or documents that provide evidence for the officer that intent to marry in the U.S. was actually formed prior to the entry on the temporary visa. In still other cases, the examiner believe that the applicant worked unlawfully while on the temporary visa, thereby rendering him/her ineligible for adjustment in the U.S.

You definitely shouldn’t plan to enter the U.S. on a nonimmigrant visa with an intent to marry in the U.S. Many such people get stopped in the airport and sent home when the customs officer realizes what the “visitor” is intending to marry in the U. S. and remain. In other cases, the foreign national gets in to the U.S., marries, and tries to get a green card but is refused because the CIS officer decides that the application had immigrant intent all along. Still others are caught by the USCIS examiner making a “material misrepresentation”, and are banned from the U.S. for several years or even for life.

However, if you entered the U.S. intending to return home, but decided while you were here that you just couldn’t postpone your marriage any more, or be separated again from your beloved other, give us a call and we can probably help. We strongly encourage you to call us before you marry if at all possible.

Need Help? Get In Touch With Us!

Member, American Immigration Lawyers Association

×

MBA Diploma

×

New York State Supreme Court Certification

×

New York State Bar Association

×

The Wharton School of the University of Pennsylvania

×

Family

×

×