You meet the love of your life. You spend months agonizing over what you believe will be the most difficult part… popping the question! You finally build up the courage. In front of your family and friends, you and your sweetie decide to join lives together as one, forever. And then, Corona enters center stage.
This novel pandemic has taken the world by surprise. Many believed the world would be back to normalcy within a few weeks, a couple of months tops. However, almost a year later, families continue to face unique barriers when it comes to travel and family reunification.
Family members eager to begin the next chapter of their lives frequently pose similar questions to our legal team. With the constant change in travel bans, in the U.S. and abroad, couples are desperately trying to ascertain how they can remain together while not violating U.S. immigration laws. Below I address 2 of our most common questions and hope this may bring some clarity to you and your loved ones during these uncertain times.
Case Example 1: I am on a B-2 tourist visa visiting my fiancé in the U.S. and cannot leave due to the pandemic because my flight has been canceled. If we decide to get married now, can my U.S. Citizen fiancé apply for my Green Card without me having to leave the country?
The short answer: Yes! U.S. immigration policies allow a foreign national to apply for a Green Card or “adjust status” while visiting the U.S. provided that there was no intention of applying for a Green Card at the time of entry.
The long answer: USCIS looks at the actions, as well as the intentions of a foreign national who enters the U.S. Specifically, during the 90 days after arrival. To learn more about the 90-day rule, see uscis.gov/policy-manual/volume-8-part-j-chapter-3 see also, https://fam.state.gov/fam/09FAM/09FAM030209.html.
In other words, if you choose to get married within the first 3-months (90-days) of your arrival to the U.S., you could find yourself in the hot seat. USCIS could interpret these actions as having preconceived immigrant intent and deny your green card on this basis. If you find yourself in a similar situation, it is crucial that you review your case with an experienced immigration attorney who will be able to fully address the particular issues that may arise.
Case Example 2: I am visiting the U.S. on a B-2 tourist visa, and I don’t want to be separated from my Green Card holder fiancé due to the pandemic. If we get married now, can my fiancé sponsor me for a Green Card?
The short answer: Yes! A Green Card holder can petition for their foreign national fiancé as long as (1) there was no immigrant intent as described above; (2) the U.S. Department of State’s Visa Bulletin shows that the F2A category is current; and (3)if the adjustment of status is filed before the foreign national’s tourist visa status has expired.
The long answer: Immigrant intent is everything! Even more so when we address ESTA. If the foreign national fiancé is here on an ESTA, things get a bit more tricky. How are you supposed to wait 90 days to get married if your ESTA status is only valid for 90 days? So long as there was no immigrant intent at entry, and the idea of applying for a Green Card only arose after arriving in the U.S., an experienced legal team will be able to customize a strategy to keep your family together.
The above concepts also apply to other immediate relatives of U.S. Citizens, such as when a parent is visiting their U.S. Citizen adult child (over 21) or when a minor child (under 21) is visiting their U.S. Citizen parent. These family members also fall under the umbrella of Immediate Relatives of U.S. Citizens and are not subject to the limited number of Green Cards available.
Purdy Law is available to serve you and your family throughout the U.S., ensuring your family remains united so you can focus on keeping them healthy and safe.