I arrived on vacation in November, my passport was stamped for a six month stay in the US upon entry, however after being in the US for 2 months my boyfriend who is a US citizen, proposed and we got married, we filed for Adjustment of Status on Friday but we are worried what will happen, as I was only admitted to the US for a period of 6 months on a tourist visa which means I will have to depart the US on 5 April and since we have only just filed papers what do we have to do? Please advise urgently. Thank you
If you lawfully entered the U.S. on a B-1/B-2 visitor visa, you may normally file for a green card based on a bona fide marriage to a U.S. citizen. Overstaying your visitor status, in and of itself, does not prevent you from adjusting status in the immediate relatives (e.g. spouse of U.S. citizen) category. Your US citizen spouse must file an I-130 immigrant petition for you so you may concurrently or subsequently file an I-485 application for permanent residence. A properly filed I-485 provides authorized stay and tolls the accrual of unlawful presence.
After USCIS receives your I-130 + I-485 one-step application, it will issue a receipt notice and then a biometrics (fingerprinting) appointment notice. Then in about 6 months from the date of filing, USCIS will send you green card interview notice, instructing you and your spouse to appear before a USCIS officer and bring certain documents.
During the interview, the officer will verify whether you have a bona fide marriage, i.e. entered into with intent of establishing a life together as spouses, and not just to gain immigration benefits. The officer will also confirm whether you have any inadmissibility grounds to make you ineligible for a green card. One ground is fraud or willful misrepresentation of material fact for immigration purposes.
The B-1/B-2 visitor visa is for temporary visits only. If there was a specific intent to misuse the visa to enter the U.S., marry the citizen and apply for the green card - to circumvent the immigrant visa process - USCIS may deny the green card application.
The U.S. Department of State adopted a 30/60 day policy regarding this issue. When a foreign national marries a U.S. citizen or applies for permanent residence within 30 days of entry, the DOS presumes that she misrepresented her intent in seeking a visitor visa or entry. If the marriage or green card application occurred after 30 days but within 60 days of entry, the DOS does not presume there was misrepresentation. But if the facts provide a reasonable basis to believe the foreign national misrepresented her intent, the DOS allows her to present rebuttal evidence. If the marriage or green card application occurred after 60 days, the DOS does not consider such conduct to constitute fraud or willful misrepresentation to obtain immigration benefits.
USCIS is a separate agency from the DOS and the Board of Immigration Appeals has held that immediate relatives are exempt from the 30/60 day rule. Nevertheless, USCIS is often persuaded by the DOS policy.
In your case, your boyfriend proposed two months after your arrival. This helps to show you did not misuse the tourist visa by claiming to be a mere visitor at the U.S. port of entry, when in fact you intended to remain in the U.S. and file for a marriage-based green card.
Remaining in the U.S. beyond authorized stay does not prevent you from adjusting status based on marriage to a U.S. citizen. While the I-485 is pending, you must not leave the U.S without Advance Parole, which would result in abandonment of the application. If the I-130 + I-485 are approved, you will be issued a green card. If the I-485 is denied, for whatever reason, you are subject to being placed in removal proceedings and begin to accrue unlawful presence.
Consult an immigration attorney to confirm your eligibility for marriage-based adjustment, prepare you for the interview, and maximize your chance for an approval.
