My Fiancé or Spouse Is Already in the US, What Now?
Foreigners are already in the U.S. for all sorts of reasons.
Some are on student visas going to school for years. Others work in the U.S. on work visas. Still others are on visitor visas for short stays. Many don’t even need a visitor visa to visit the U.S.; they can use the 90 day visa waiver program (ESTA). Finally, some came to the U.S. on a fiance visa to marry a U.S. citizen and correctly proceed with green card processing.
When can a foreigner avoid the fiance visa and still pursue a green card based on marriage to a U.S. citizen or green card holder?
Entering to Marry in the U.S.
The main question is whether the foreigner intends to abide by the terms of the visa they hold. Each visa has a particular purpose. The fiance visa is the visa for those foreigners who want to marry in the U.S. and obtain a green card. For all others, it depends on the most recent entry to the U.S. and the intentions of the foreigner when entering.
It is not acceptable to enter the U.S. with one type of visa while having ulterior motives to marry and immigrate based on that marriage. For example, a foreigner should not come to the U.S. on a visitor visa with the unannounced secret intent to marry a U.S. citizen and pursue a green card. A rare exception would be the H1-B and L1 work visas because those visas have dual intent. The vast majority of visas require singleness of intent. So, the first step for the attorney is to check the type of visa and manner of entry for those already in the U.S. The attorney can help determine chances of success for remaining in the U.S. after marriage to pursue a green card.
Note: It is not necessary to have any immigration status in the U.S. in order to marry.
No particular visa required. The US allows marriage with a foreigner already in the U.S. because marriage is according to State Law, not U.S. Federal Immigration Law. For example, two Italians can marry on a weekend in Las Vegas and return to Italy. US Immigration is not an interest. The marriage itself is valid.
Entering the U.S. After Marriage
The same is true for a foreigner coming to the U.S. to visit, already married to a U.S. citizen or permanent resident green card holder. The married foreigner must plan to visit the U.S. and then depart as a visitor on time.
A problem occurs at the CBP port inspection because CBP officers are trained to block entry to the U.S. when they suspect a foreigner may want to remain past the authorized stay as a visitor. The fact of the marriage is enough to raise suspicion and block entry. You always want to disclose the truth to a CBP officer, so a foreigner who is married to a U.S. citizen often runs into problems at the US border check. This problem is avoided if the foreigner has a marriage visa rather than a visitor or some other visa. Be careful when considering how to properly cross into the US and proceed with immigration filings or there will likely be problems.
If the foreigner enters the United States on either a K1 fiance visa or CR marriage visa , the foreigner is welcome to remain in the U.S. and apply for a green card. Eventually the foreign spouse can apply for U.S. citizenship as well.
It is often necessary and proper to return the foreigner home if the foreigner came to the U.S. without a K visa. He or she would soon after return to the U.S. on a CR marriage visa. Your best choice depends on your situation.
Especially call us if your foreign fiancee or spouse entered the U.S. illegally or on a visa that expired. We need this history before we can determine your options. Immigration agencies are “on the prowl”, looking for improper use of a visa when entering the U.S.
Misrepresentation or misuse of a visa is grounds for a bar from the U.S., married or not.
Call for Assistance
Consider a licensed, professional immigration legal representative before proceeding. Immigration law is large and diverse, covering many types of immigration. Government agencies have become increasingly adversarial. It helps to have our team on your side to prevent avoidable and unnecessary delays, anticipate problems, and effectively navigate your matter toward successful completion. We provide a free initial consultation for those interested in possibly working with us on case processing, and we’re happy to answer your questions.