AOS Eligibility?

[joshuastrauss3]

My fiancee has a B1/B2 tourist visa and we are planning to get married in October. Due to the coronavirus, marriages aren’t happening in Mexico at the moment, so she was going to come here to get married. After we get married, I am planning to file the I-130. Would she be eligible for AOS? We have consulted with various lawyers and have gotten completely different responses, so we aren't sure how to proceed. Thank you!

[Mrsf86]

It depends. Are you a USC or a green card holder?

[joshuastrauss3]

I am a USC and she is a Mexican citizen

[Johnny6751]

My fiancee has a B1/B2 tourist visa and we are planning to get married in October. Due to the coronavirus, marriages aren’t happening in Mexico at the moment, so she was going to come here to get married. After we get married, I am planning to file the I-130. Would she be eligible for AOS? We have consulted with various lawyers and have gotten completely different responses, so we aren't sure how to proceed. Thank you!

The answer is no, that is because the Visa category that she holds right now which is for visiting purposes will count as Misrepresentation, the best that you can do is to file for a k-1 Visa, under that Visa then she will fall under the category that she is intending to come to United States for. The problem is that if she comes over to a Port of entry and she tells them that she's coming to visit but then she gets married, then her application will be denied and she will be subject to deportation.

[Johnny6751]

I’ve seen and read somewhere that she could come visit you in the US (the purpose for coming would be for tourism purposes). You can marry later and after 90 days you can file for AOS.

I’m not a lawyer and this should in no way be construed to be a legal advice.

the key to everything involving marriage and visitor status is intent. It is useful to refer to the Foreign Affairs Manual, the guide used by the State Department (and which is largely followed by USCIS).

The 2017 edition states:

“If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of visa application or entry, as described in subparagraph (2)(b) below, you may presume that the applicant's representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry. ……

(b) (U) For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status includes, but is not limited to:

(…)

(iii) (U) A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; “

In order for there to be unlawful intent ascribed to an individual in B1/B2 status, in addition to marrying a U.S. citizen within 90 days of entry, that person must also take up residence in the United States. This would be the situation encountered where someone attempts to adjust status (to that of a Permanent Resident) following marriage. If you get married, then leave and go to your home country, there’s no such problem. Although, getting readmitted as a visitor at a later point *might* be tricky, the State Department would likely want to see proof of your intent to depart, failing which, they would request that you file for an immigrant visa.

[newacct]

the key to everything involving marriage and visitor status is intent. It is useful to refer to the Foreign Affairs Manual, the guide used by the State Department (and which is largely followed by USCIS).

The 2017 edition states:

“If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of visa application or entry, as described in subparagraph (2)(b) below, you may presume that the applicant's representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry. ……

(b) (U) For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status includes, but is not limited to:

(…)

(iii) (U) A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; “

In order for there to be unlawful intent ascribed to an individual in B1/B2 status, in addition to marrying a U.S. citizen within 90 days of entry, that person must also take up residence in the United States. This would be the situation encountered where someone attempts to adjust status (to that of a Permanent Resident) following marriage. If you get married, then leave and go to your home country, there’s no such problem. Although, getting readmitted as a visitor at a later point *might* be tricky, the State Department would likely want to see proof of your intent to depart, failing which, they would request that you file for an immigrant visa.

This Department of State guidance is not binding on USCIS.

[Johnny6751]

This Department of State guidance is not binding on USCIS.

Which is largely followed by USCIS!

[Enub4]

People traveling to the USA with a visitor visa should not have the intention to get married when they are asked what is the purpose of the visit to the USA. I have read that some people surprise their parents or friend asking them to stay in the country without theirs knowledge.

Your fiancee already knows that the intention is getting married, so that is a problem entering the USA.

I think if you marry in Mexico, then your spouse will need to stay in Mexico until you apply I-130 and then do consular processing.

For K1 information visit:
https://www.uscis.gov/family/family-...of-us-citizens