Orlando, FL asked in Immigration Law for Florida

Q: Can a foreign citizen enter on visa waiver, marry a US citizen and immediately return to country of origin to apply GC?

I understand that any foreign national seeking to marry fiancé and adjust status need to either apply for a K1 visa to do so or convincingly prove that the marriage was not premeditated with intention to stay . What if they entered on visa waiver , married and immediately returned back to country of origin , waited 3 months and then applied for green card from his home country. Afterall , foreign spouse did not adjust status on US soil, did not seek to remain, didn’t overstay a visa, returned home , 90 days have passed and now he’s beginning process from home country ? Would this be acceptable and not seen as visa fraud ? Thank u.

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3 Lawyer Answers

Kelli Y Allen

  • Immigration Law Lawyer
  • Charlotte, NC

A: It is fine to marry while in the U.S. under the VWP as long as you comply with all the terms and leave within the designated timeperiod. Your spouse would file a petition, you would process through the consulate, and re-enter with an immigrant visa (if approved). That is not immigration fraud. It would be if you came on the VWP with the plan to marry and remain permanently rather than leaving and processing back through the consulate.

Kevin L Dixler

  • Immigration Law Lawyer
  • Chicago, IL

A: I strongly recommend an appointment or teleconference with a competent and experienced immigration attorney before there are any other complications.

The Foreign Affairs Manual, contained in 22 CFR, too often condemns that sort of conduct. Ask about the 30/60/90 day rule, which is an actual footnote to a regulation, but is too often enforced like law. Your decision to enter for such reasons have been interpreted as misrepresentation, even if there may appear to be a reasonable expectation.

This ‘irrebuttable presumptions’ of misrepresentation is quite frustrating for the unaware. A decision that you committed fraud by the consular official can cause an indefinite bar to lawful immigration. Good luck!

The above is general information, not legal advice, and does not create an attorney client relationship.

Stephen Arnold Black agrees with this answer

Stephen Arnold Black

  • Immigration Law Lawyer
  • Orlando, FL
  • Licensed in Florida

A: I agree with Mr. Dixler. The visa waiver program entitles persons from select countries to enter the US without a visa for tourism or business reasons for a limited period of time. You are intending to use that visa waiver privilege to get married. This strategy may in the discretion of an immigration officer at the border or at a future interview appointment, be considered immigration fraud. You should hire experienced immigration counsel to review all the facts and arrive at a solution that is the most ethical pathway to achieve your goal.

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