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  1. #1
    kindred1122 is offline Junior Member
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    US citizen to marry a foreigner

    I am a natural born citizen of the USA from IL. I want to marry my boyfriend who is from Switzerland. If he comes to the U.S. on a tourist visa/passport, can we marry in the U.S. without having to file for a fiance visa, since he is already in the states? Thank you, Lori
  2. #2
    NYImmLaw is offline Member
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    Quote Originally Posted by kindred1122 View Post
    If he comes to the U.S. on a tourist visa/passport, can we marry in the U.S. without having to file for a fiance visa, since he is already in the states?
    Yes, you should be able to get married in the U.S.A. even if your husband enters as a tourist.

    But that's not the end of the story. Switzerland is a visa waiver country. That means he will probably not be coming in with an actual tourist visa. People who enter the U.S. under the visa waiver program cannot change status in the United States. Therefore your fiance will not be able to stay in the U.S. to get his greencard after he marries you, if he enters under the visa waiver program. He would need to return to Switzerland for consular processing of the I-130 (Immigrant Relative Petition) you will file for him.

    The fiance visa, on the other hand, allows your fiance to enter the U.S. to get married to you and STAY in the U.S. to get a greencard.
  3. #3
    kindred1122 is offline Junior Member
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    Thank you for the clarification on the tourist visa and marriage.
  4. #4
    realicious is offline Junior Member
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    Generally, people who enter the U.S. under the visa waiver program cannot change status in the United States but if they are to change their status based on a marriage to US Citizen, they CAN change their status without any problem. The only thing that you need to be careful about is not to get married upon arrival. An immediate marriage upon arrival with visa waiver problem can bring problems. Date him more and get to know him better, then get married. Good luck.
  5. #5
    NYImmLaw is offline Member
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    Quote Originally Posted by realicious View Post
    Generally, people who enter the U.S. under the visa waiver program cannot change status in the United States but if they are to change their status based on a marriage to US Citizen, they CAN change their status without any problem. The only thing that you need to be careful about is not to get married upon arrival. An immediate marriage upon arrival with visa waiver problem can bring problems. Date him more and get to know him better, then get married. Good luck.
    It is not as simple as that anymore. A person who enters the U.S. on anything other than a fiance visa and gets married less than 90 days after arrival will generally make the USCIS believe that entry was with the intent to marry. Since you cannot lawfully enter the U.S. under the visa waiver program with the intent to marry, that can trigger a fraud charge and denial of the greencard. Moreover, now a person entering under the visa waiver program who stays more than 90 days (and therefore overstays) and then gets married can be detained and removed (without contest) and the I-485 denied as moot. See Momeni v. Chertoff at http://www.immigrantjustice.org/content/view/443/167/. Entering under the Visa Waiver program and THEN getting married in the U.S. is now a dangerous proposition unless the spouse leaves the U.S. before overstaying the authorized period of stay on the I-90.

    To be honest, I generally advise people to not enter the U.S. to get married unless they have a fiance visa. Entering and then getting married can often create problems. If you want to get married do it the right way, get married in your spouse's country and then file an I-130, or file for a fiance visa and then get married in the U.S. Don't try to game the system because it can come back to bite you.
  6. #6
    realicious is offline Junior Member
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    On my last reply I tried to explain what was, and is, doable but I totally agree with you on possible negative effect of getting married less than 90 days after arrival and doing things the right way.

    I carefully read the case (through aila.org) that you mentioned to this thread but I find that Momeni's case differs completly from the issue that we are talking about.

    In Momeni's case, there are two different processes involved - USCIS & Immigration Court- and things happened in reverse order: He entered the country, stayed longer than he was permitted to, got married. So far, so good. Unfortunatlly, he got detained before he applied for AOS (USCIS). On top of that, he applied for AOS as a way out from removal proceeding (formerly, deportation proceeding (Immigration Court)). But because he WAIVED his "right to contest" when he entered with his visa waiver he could'nt dig himself out. -- If you are in removal proceeding, you cannot use the AOS as a defense (contest to removal) and his petitioner's habeas relief in district court was worst thing you can do because you end up using the precious time barking at a wrong tree. Maybe the extreme hardship waiver during his removal proceeding could have worked better.

    Copied from AILA - American Immigration Lawyers Association website

    A Visa Waiver Pilot entrant may not contest removal through adjustment of status where he becomes eligible for adjustment of status and files the application after the 90-day period of admission has expired.

    On November 30, 2005, Petitioner entered the United States as a tourist on the Visa Waiver Program with permission to remain in the U.S. for 90 days. In July 2006, Petitioner was taken into custody for having overstayed his period of admission. In September, Petitioner filed for adjustment of status based on his April 11, 2006 marriage to a U.S. citizen. Petitioner sought habeas relief in district court to compel adjudication of his adjustment application....
    Last edited by realicious; 01-07-2009 at 05:02 PM. Reason: to fix the tag
  7. #7
    NYImmLaw is offline Member
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    I think you misunderstand. A person who enters under the Visa Waiver program does not have the right to a removal proceeding. They have already waived the right to a removal proceeding by entering under the Visa Waiver program. If you come in on VWP and overstay, ICE can pick you up at any time and immediately deport you. People with VWP overstays are now being picked up at adjustment interviews and immediately deported. Then the I-485 is denied as moot because the person is no longer in the U.S. AILA has already sent out an advisory to immigration lawyers about this new development. Is this happening to every case now? No, some areas like NYC still have not seen this happen, but it is a risk any VWP overstay must now face if applying for adjustment of status.

    This applies to the OP's situation because if she and her fiance marry within the first 90 days of his entry into the U.S. and then file for adjustment of status he will risk that the USCIS will claim fraudulent immigration intent when he entered under the VWP. If he overstays and THEN marries and applies for adjustment of status, the fiance risks being detained and removed without a hearing.

    P.S. - Anyone else who legally enters the country DOES have the right to contest removal through applying for adjustment of status during the removal hearing.

    PPS - It is my job to know this stuff.
  8. #8
    evcalyptos is offline Senior Member
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    Quote Originally Posted by realicious View Post
    Generally, people who enter the U.S. under the visa waiver program cannot change status in the United States but if they are to change their status based on a marriage to US Citizen, they CAN change their status without any problem. The only thing that you need to be careful about is not to get married upon arrival. An immediate marriage upon arrival with visa waiver problem can bring problems. Date him more and get to know him better, then get married. Good luck.
    You are also missing an important piece regarding intent and what the declared and presumptive intent is when using the VWP to enter the US.

    [url]http://www.uscis.gov/files/article/A2.pdf[/url]
    What if my fiancé(e) uses a different kind of visa, or enters as a visitor without visa, to come here so we can get married?

    There could be serious consequences. Attempting to get a visa or enter the U.S. by saying one thing when you intend another may be considered immigration fraud, for which there are severe penalties. Those penalties include restricting a person’s ability to get immigration benefits, including permanent residence, as well as a possible fine of up to $10,000 and imprisonment of up to five years. It is not appropriate for your fiancé(e) to enter the U.S. as a visitor with the intent to marry you and remain to try to become a permanent resident. It is appropriate, however, to enter as a visitor to have the wedding in the U.S. and then return to a foreign residence for further processing for U.S. immigration as a spouse.
    You should come prepared with proof of your clear intentions in this regard.

    If I had answered this post first, besides asking questions about what they meant to do after the wedding, I would have reminded kindred that it is illegal to enter the US as a visitor when you actually have the intent to immigrate (marry + adjust status).

    PS: Momeni isn't the only case floating around on this, tho it is frequently discussed. There are starting to be user posts about removals.

    And I don't see the logic in the 'don't marry immediately'.. can you flesh out what you mean by "The only thing that you need to be careful about is not to get married upon arrival. An immediate marriage upon arrival with visa waiver problem can bring problems. Date him more and get to know him better, then get married."
  9. #9
    soube45 is offline Junior Member
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    Marry a US Citizen

    Dear, NYimmlaw

    I have a question for you, My girlfriend and I want to get married she is a US citizen. I came to the USA with a F1 visa. I had completed part of my studies but caused by monetary problems. I had to abandoned my school. I could not stay studing and I lost my F1 status.. I guess.. Now we want to get married and we do not know what precedures or actions could involve in my case. My I -20 expired on August 2008. My questions are ... should i go back to my country and get married there, or shold I saty in the US.


    Please Help me

    I will really appreciate

    Thank you


    Quote Originally Posted by NYImmLaw View Post
    Yes, you should be able to get married in the U.S.A. even if your husband enters as a tourist.

    But that's not the end of the story. Switzerland is a visa waiver country. That means he will probably not be coming in with an actual tourist visa. People who enter the U.S. under the visa waiver program cannot change status in the United States. Therefore your fiance will not be able to stay in the U.S. to get his greencard after he marries you, if he enters under the visa waiver program. He would need to return to Switzerland for consular processing of the I-130 (Immigrant Relative Petition) you will file for him.

    The fiance visa, on the other hand, allows your fiance to enter the U.S. to get married to you and STAY in the U.S. to get a greencard.
  10. #10
    AHA
    AHA is offline Senior Member
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    Quote Originally Posted by soube45 View Post
    Dear, NYimmlaw

    I have a question for you, My girlfriend and I want to get married she is a US citizen. I came to the USA with a F1 visa. I had completed part of my studies but caused by monetary problems. I had to abandoned my school. I could not stay studing and I lost my F1 status.. I guess.. Now we want to get married and we do not know what precedures or actions could involve in my case. My I -20 expired on August 2008. My questions are ... should i go back to my country and get married there, or shold I saty in the US.


    Please Help me

    I will really appreciate

    Thank you
    You need to start your own thread, since this one is about someone else's situation.
  11. #11
    AHA
    AHA is offline Senior Member
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    Quote Originally Posted by realicious View Post
    Generally, people who enter the U.S. under the visa waiver program cannot change status in the United States but if they are to change their status based on a marriage to US Citizen, they CAN change their status without any problem. The only thing that you need to be careful about is not to get married upon arrival. An immediate marriage upon arrival with visa waiver problem can bring problems. Date him more and get to know him better, then get married. Good luck.
    Encouraging an illegal act on a LEGAL advice site is not the right thing to do!

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