Visit Visa and Marriage to US Citizen for immigration

This is probably the most common immigration situation and can often lead to the great problems. Any persons entering the US on a visitor visa, or visa waiver, are coming for the purpose of a brief visit, and they intend to return to their country prior to the expiration of their authorized stay in the US. Therefore, if they are really coming to marry a US citizen for immigration purpose and then file for adjustment of status, they are not bona fide visitors for pleasure. As such, they are impliedly, if not specifically, misrepresenting their true intentions when they apply for entry to the United States.

If the US Immigration officer at the port of entry knows that they are not really coming to visit, but rather intend to stay permanently in the US, they very likely could be denied entry and required to return to their home country, where they will have to apply for their immigrant visa. There is also the possibility that the immigration officer could actually place the individual in removal proceedings, which could require them to obtain a waiver if they later wish to return to the US.

Even if the individual enters the US without any difficulty, a problem could still arise at the time that the individual appears for their immigration interview for adjustment of status. Again, if the immigration officer learns that the alien misrepresented their true intention at the time of entry, the officer could require the alien to file for a waiver of inadmissibility, which could be denied in the exercise of discretion of immigration authority.

There is immigration case law that states “in the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a non immigrant with a preconceived intention to remain.” This is particularly true “where substantial equities are present in the case.” However, the Board of Immigration Appeals has also held that “entry into the United States as a non immigrant with a preconceived intention to remain is a serious adverse factor.”

Based on the foregoing, it should be clearly understood that there is always a risk involved when entering the United States for the purpose of marriage to a US citizen and then filing immigration petition for adjustment of status, although in the majority of cases, the application will nonetheless be approved, especially where there are substantial equities and no other adverse factors.