Tills Visa Law

Stephen K. Tills, Attorney at LAW

Change in regulation is intended to discourage short-term visitors from obtaining Green cards through marriage to a U.S.C.

In September, 2017, the Trump administration issued a new regulation in the Foreign Affairs Manual (FAM) that discourages foreign nationals who intend to marry U.S. citizens from entering the U.S. as visitors.   This provision increases the time period before which visitors can marry without it resulting in a presumption of misrepresentation at entry. (The FAM provides for the procedures that govern the operations of the State Department, the Foreign Service, Customs and Border Protection, and, when applicable, other federal agencies.)

In the past, the responsible Federal Immigration agencies have tried to strike a balance between the ability of U.S. citizens to marry their foreign national spouse with-out undue burden, while maintaining the integrity of the border inspection system. Thus, those intending on marrying a U.S. Citizen are required to have an immigrant visa if they intend to live in the U.S.. But what if they decide to marry a U.S. citizen shortly after arrival?

THE “30 / 60” RULE

The policy has been that as long as the marriage does not take place within 30 days of entry to the U.S. and the visa application is not filed within 60 days, the application is acceptable without a presumption of misrepresentation. This policy has been changed by the Trump administration.

FAM 302.9-4 (U) MISREPRESENTATION – INA 212(A)(6)(C)(I)
(2) (U) Inconsistent Conduct Within 90 Days of Entry:

(a) (U) However, if an alien violates or engages in conduct inconsistent with his or her non-immigrant status within 90 days of 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. To make a finding of inadmissibility for misrepresentation based on conduct inconsistent with status within 90 days of entry, you must request an AO from CA/VO/L/A. As with other grounds that do not require a formal AO, the AO may be informal. See 9 FAM 304.3-2.

As a result of this policy change, visitors to the U.S. will have to wait at-least 90 days before marrying the U.S.C. For those entering the U.S. on a visitor visa, often for a 6 month duration, they would still be able to file the visa applications while in lawful visitor status. But those entering the U.S. on only an ESTA approval are given a maximum of 90 days, and would risk being deported in remaining in the U.S. past their authorized stay.

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