For couples just beginning to research the immigration process, they often ask themselves if they have a choice between pursuing a visa (whether fiancée or marriage bases) and adjustment of status. In fact, the decision is usually not theirs to make. Instead, the facts normally dictate which is the appropriate strategy to pursue.
Here is the one factor usually decides which you will pursue: is your significant other already in the United States or is she abroad? If she is abroad then adjustment of status is probably not available to you. She is already in the United States, then you may be able to pursue adjustment of status. Let’s look at both options.
Foreign national is outside of the United States.
If your significant other is currently outside of the United States then you’ll likely need to pursue a visa rather than adjustment of status. Here’s why. Immigration law generally prohibits an individual from entering the United States on a temporary visa, such as a tourist visa or ESTA, with the intention of seeking residency. Temporary visas are just that – for temporary travel. It may be considered an act of immigration fraud to enter the United States on a temporary visa if your actual goal is to pursue residency.
The legal concept at work here is called “immigrant intent.” You can read more about that specific legal issue in another section. In short, the immigration authorities want to know if a person plans to reside permanently in the United States (that is called immigrant intent) or if she plans to be here for merely a limited trip. The issue of fraud arises if somebody has entered the United States on a temporary visa and then turns around to file a residency patient through the adjustment of status process. This can be an act of fraud. Because the person first stated to the immigration authorities that she planned to be only a temporary visitor, but then broke that promise by seeking residency.
Example: Felix is a German citizen. Living in Berlin, he has just become engaged to a US citizen who needs to relocate to the United States for work reasons. Because he is a German citizen, Felix can enter the US on the ESTA (like a tourist visa). Because they know the average base visa process is extremely lengthy, they plan to have Felix simply enter the US on the ESTA, get married shortly thereafter, and then file adjustment of status. This is a textbook example of a couple that should not pursue adjustment of status. Felix could be denied entry to the United States at the port of entry of the immigration officer becomes aware of his plans. But even if he makes it into the United States, is adjustment application can be denied on fraud grounds and he can be permanently banned from the United States. Instead, Felix should pursue a marriage base visa or fiancée visa, even though that will result in a longer time before he can relocate to the United States.
There are limited exceptions to the foregoing rule. Certain visas are classified as “dual intent” visas. . They are dual intent in the sense that an individual is permitted to possess both the intention to be on a temporary trip and also to seek residency. A holder of a dual intent visa would typically not be prevented from seeking adjustment of status based on marriage. Here is a list of the primary coolant and visas:
- H-1B (skilled temporary workers).
- H-4 (dependent spouses of H-1B holders).
- L (transfers from multinational companies).
- O (individuals of extraordinary ability).
- E (investors).
Couple is already present in the United States.
When both members of a couple are already present in the United States, they typically wish to pursue adjustment of status if they can. Doing so means that they may remain together in the United States during the legal process, rather than be separated with the foreign nationals living abroad. The primary scenario where this is ill advised, is if the foreign national recently arrived in the United States on a visa that does not support dual intent.
Importantly, overstaying a visa by itself does not typically make an individual and eligible for adjustment of status. Even overstaying a visa by years or even decades does not render a person ineligible to pursue adjustment of status. In such cases it can often be difficult to prove that the person entered originally on a lawful visa status, especially if entry was made via a land crossing. As a legal matter however, the visa overstaying does not make ineligible.
Example: Maria is a Mexican citizen who enter the United States on a tourist visa when she was only three years old. She was raised by her parents in the United States and is never left the country. Assuming Maria can prove her lawfully inspected entry, and meets the other requirements, she may pursue adjustment of status. There is no concern that has a three-year-old she abused the visa process and actually harbored the intention of seeking residency.
The situation becomes appreciably more complex when the foreign national has entered the United States relatively recently. The first question that you should ask yourself is precisely that, what was the plan at the time of arrival? Only you can know the actual answer to the question.
The immigration authority, of course, will do more than simply ask you what your intention was. They will look at the circumstances of your case to try to make their own determination about what you are up to. Here, the biggest factor is often time. If you enter the US on a temporary status and then quickly file for adjustment. This strongly suggests that your intention all along was to seek adjustment.
As described in more detail elsewhere, immigration lawyers have typically been most concerned about cases filed within three months of an individual’s arrival. That is now codified in what is referred to as the 90 day rule. As a rule of thumb, it should be a red flag if you are considering adjustment of status within 90 days of the foreign national’s arrival. Again, however this is only a rule of thumb, because the core inquiry is what the couples subjective intention was.
For couples present in the US who do have the option of seeking adjustment, there can still be reasons to pursue a visa instead. Most importantly, once you have filed an adjustment of status application, you may not depart the United States until you receive travel authorization to do so. So the foreign national is basically trapped in the United States until that travel authority is issued. Historically such authorization is issued within about 45 days, but at the time of writing almost 1/4 of such cards take six months or longer. That can be a real problem for somebody who needs to wrap up affairs in their home country. Emergency travel authorization can be requested through local USCIS office, but the office is not required to issue such authorization, and will usually do so only in true emergencies.If the foreign national knows that she has time sensitive matters that she must attend to in her home country, it can sometimes make more sense to return while concurrently starting the marriage fiancée visa process.