marriage on tourist visa

[ChristinaM 0]

But it would have been nice to know we were going to get married, and be able to tell my friends and family, plan a nice wedding, all that kind of thing..... Ah well, you can't win them all!

I'll have to give you a call sometime - between work, by concert band and my college classes, I'm spread pretty thin right now (hence why I've not been around much!). So it's nothing personal

Aaaaaaaaaaaaanyhoo,

Kitkat, I would also consider Mo's word to be, if not definitive, a damn good place to start.

Edited January 17, 2007 by ChristinaM

[am1996 0]

In other words, although your reasoning above might support certain fairly unsual situations where people get married and are going back and forth on staying here and adjusting status or going back to the home country but eventually decide to AOS, in the vast majority of cases the USCIS is likely to take the position that the alien has violated his/her B2 on the day he/she got married rather than the day the AOS was filed.

I think that's complete BS, thrown out to support a narrow point of view. Please provide some evidence of how you can see inside the heads of the USCIS officers, or even evidence that that belief is held by the USCIS.

First, whether or not you agree with something, would it be too much to ask you to remain civil?

Second, I believe that I've already provided examples of the situations where it would be indisputable that the alien has "taken up residence" prior to filing the AOS application. For instance, as I've already mentioned above, if you've gotten married and have filed a joint tax return where the alien spouse has elected to be treated as a US resident for tax purposes, how would you dispute the fact that you "took up residence" way before you ever filed for AOS? Remember that you, as the alien petitioner, have the burden of proof to show that you qualify for the immigration benefit applied for. As such, if you wanted to contend that you only "took up US residence" on the date you filed AOS petition and not prior to that, you would have the prove that by, I believe, clear and convincing evidence. Just out of curiosity, how would you do that?

To be honest with you, in a situation where you got married within the first 30 days but did not apply for AOS for another month or two, unless you had truly compelling evidence that you had not "taken up residency" until the AOS application was filed, you would be well advised not to argue about the presumption (which, as a practical matter, is only likely to aggravate the adjudicator) and to instead concentrate on establishing the lack of fraudulent intent at the time the nonimmigrant declaration was made.

[rebeccajo 14]

am1996, when did you switch from corporate law to immigration law?

[am1996 0]

I consider Mo's word gold:

http://www.visajourney.com/forums/index.ph...=42056&hl=#

Some lawyers do still advise the 'wait 30 or 60 or 90 days before doing X' but you should understand that that is based on their personal idea of what is 'safe' and is not actually based on a law. Some people (including lawyers!) have misunderstood the paper that guideline was originally written for.

It's not good advice to give to someone, that is, waiting does not make someone 'safe' in immigration

Yes, and the quote above is quite consistent with my posts in this thread. The fact that you may have a rebuttable presumption on your side certainly does NOT make you safe, since the presumption can always be rebutted by evidence of fraudulent intent. Likewise, having the presumption against you (getting married in the first 30 days) does NOT mean that you will encounter problems adjusting status -- all it means is that you may be asked to provide more evidence of your intent than if you had waited to get married for another month or two. If, however, you are ambivolent about the precise marriage date and the nonimmigrant visa was not procured through fraud, knowing about the presumption should cause you to seriously consider getting married after 60 days.

Again, people are advised to type rather than handwrite the information on their applications because it makes it more likely that the application will be processed without errors; people are advised to attach a cover sheet to their AOS applications to make it more likely that parts of their application packages will not be misplaced. All these things fall in the "best practices" category -- following them certainly does not guaranty that you will sail through the process but it improves your chances of doing that. The 30/60/90 day presumption that we are discussing falls in the same "best practices" category and adhering to it certainly has the potential to make (but is not guaranteed to make) a much greater difference than typing your applications or attaching cover sheets ever could.

[am1996 0]

am1996, when did you switch from corporate law to immigration law?

What specifically are you disagreeing with and on what basis?

[rebeccajo 14]

am1996, when did you switch from corporate law to immigration law?

What specifically are you disagreeing with and on what basis?

I'm not disagreeing one way or the other.

I realize you have educated opinions on these matters. But I've cautioned you before about your pontificating the law on VJ and that advice seems to go unheeded.

[am1996 0]

I'm not disagreeing one way or the other.

I realize you have educated opinions on these matters. But I've cautioned you before about your pontificating the law on VJ and that advice seems to go unheeded.

I am still not following. What exactly is your "cautionary advice" as it relates to expressing admittedly educated opinions?

[rebeccajo 14]

I'm not disagreeing one way or the other.

I realize you have educated opinions on these matters. But I've cautioned you before about your pontificating the law on VJ and that advice seems to go unheeded.

I am still not following. What exactly is your "cautionary advice" as it relates to expressing admittedly educated opinions?

You cite code and then you argue strongly as to your opinion. Rather than allowing the reader to decide for themselves.

[am1996 0]

You cite code and then you argue strongly as to your opinion. Rather than allowing the reader to decide for themselves.

Where was the code cited? The FAM, the AFM or any other handbooks for that matter do not and have never constituted law. Instead, they are a summary of the law as well as of the policies and procedures designed to guide nonlawyer adjudicators through the process. What is the problem with analyzing those publications?

Further, even if specific statutes were cited, what exactly is the problem with doing that or with basing any subsequent analysis thereon?

Edited January 17, 2007 by am1996

[ChristinaM 0]

First, whether or not you agree with something, would it be too much to ask you to remain civil?

Quite frankly, given the arrogance in your post and your ridiculous sweeping statements about the operations of the USCIS, I consider that I was incredibly civil. If you would like me to be unpleasant I can be very much more so, I assure you.

Second, I believe that I've already provided examples of the situations where it would be indisputable that the alien has "taken up residence" prior to filing the AOS application. For instance, as I've already mentioned above, if you've gotten married and have filed a joint tax return where the alien spouse has elected to be treated as a US resident for tax purposes, how would you dispute the fact that you "took up residence" way before you ever filed for AOS? Remember that you, as the alien petitioner, have the burden of proof to show that you qualify for the immigration benefit applied for. As such, if you wanted to contend that you only "took up US residence" on the date you filed AOS petition and not prior to that, you would have the prove that by, I believe, clear and convincing evidence. Just out of curiosity, how would you do that?

Secondly, you did not address the issue I highlighted: namely, that "in the vast majority of cases the USCIS is likely to take the position that the alien has violated his/her B2 on the day he/she got married rather than the day the AOS was filed". This is vastly different from saying that one can be seen as having taken up permanent residence if they file a tax return claiming to be resident. To suggest that one is assuming residency simply by marrying a USC in the US is risible - there are many people who marry whilst in tourist status and then choose to return home to tidy up affairs, for example, or they marry on a tourist visa because it gives them a greater level of control of dates and such.

As someone who did have to prove intent and my right to the immigration benefit of AOS, I found a couple of things to be useful. The first was that I was already the holder of a C1/D visa, and was expecting to continue working under it. I had been offered a contract, for which I had papers and a date on which I would be leaving the US. The second is that my husband and I filed for a K1 visa. We filed it within the US, as soon as we realised that we wanted to get married. However, we withdrew it on the advice of USCIS, which was documented on file. Until the day that the AOS was filed, there was nothing to suggest that I had taken up residency. Every personal case is different, though, and would need to be proven accordingly.

One does not "violate their visa" by getting married. One does not even violate their visa by getting married and applying for AOS. One major way someone can violate their visa is through a material misrepresentation at the POE. Some people do lie at the POE, and they get away with it. However, many do not. It is difficult to pretend that you are "visiting a friend for a week" when you have four suitcases, your pet cat and your wedding dress in tow. As the alien beneficiary (the petitioner is the USC, by the way), you do not have to prove why your intent changed on entry. You do have to prove your intent ON entry though, or they will not let you in. To enter the US and change your mind is not a violation of anything. Herein lies the problem - the perception is that AOS from any status that is not K1 or K3 (particularly B2 or VW) is somehow less legitimate. This is simply not the case.

To be honest with you, in a situation where you got married within the first 30 days but did not apply for AOS for another month or two, unless you had truly compelling evidence that you had not "taken up residency" until the AOS application was filed, you would be well advised not to argue about the presumption (which, as a practical matter, is only likely to aggravate the adjudicator) and to instead concentrate on establishing the lack of fraudulent intent at the time the nonimmigrant declaration was made.

As I said earlier, I am already the holder of a greencard. I made no material misrepresentation on entry, and I had every intention of leaving again. Your advice, although I'm sure well-meaning, serves me no valid purpose.

Why would one wait beyond getting married to file AOS? Financial concerns? Surely it makes sense to file ASAP to get an EAD. I can see no good reason to wait to file the AOS. Lack of documentation is not a good excuse. I married on the 16th June, and we received the first NOA on 2nd July. My documents had to come from the UK. Likewise, if you enter with non-immigrant intent but decide that you wish to marry, why should you wait to do so? Or rather - why should USCIS expect you to do so?

Regardless of when you marry, be it two days after entry or 89, ones attention is certainly better focussed on establishing that the initial entry was nonfraudulent. It is nothing more than common sense to say that you are likely to be scrutinised more closely if you married closer to the beginning of your trip than the expected end, but there is no inherent bias that says that if you were legitimate in the first place, you will not be successful simply because of your date of marriage.

To be honest, the 30/60/90 day issue is not one that I have strong feelings on either way. I do have a problem with the constant, unending implications about the lack of morality and ethical standards, and the character assassination of people who undergo the AOS from tourist status, and that was what I really entered this thread to pass comment on.

[rebeccajo 14]

You cite code and then you argue strongly as to your opinion. Rather than allowing the reader to decide for themselves.

Where was the code cited? The FAM, the AFM or any other handbooks for that matter do not and have never constituted law. Instead, they are a summary of the law as well as of the policies and procedures designed to guide nonlawyer adjudicators through the process. What is the problem with analyzing those publications?

Further, even if specific statutes were cited, what exactly is the problem with doing that or with basing any subsequent analysis thereon?

When you do that, especially clearly stating that you are an attorney, you put the website in jeopardy.

I've discussed this with you privately before. How much more clearly do I need to state it?

[Killer_Clown_2009 0]

I think the tax return example is a poor one. US Citizens are allowed to claim their foreign spouse on their taxes. I've filed taxes with my husband and I don't recall anywhere where I requested being treated as a US resident. I had no US income to claim anyway.

[am1996 0]

When you do that, especially clearly stating that you are an attorney, you put the website in jeopardy.

I've discussed this with you privately before. How much more clearly do I need to state it?

Rebecca, as I hope I've clearly stated to you before, I am not aware of any prohibition preventing duly licensed attorneys located in their home states from expressing their "human" or even "legal" opinions on an internet forum, especially when those opinions are made in connection with FEDERAL matters.

By the way, the fact that a statute or a case citation is used in connection with a person's analysis does not miraculously turn that analysis into a "practice of law." In fact, although the definition of "practice of law" varies state to state, advising others regarding the most appropriate forms to file, steps to take to obtain a certain immigration benefit and similar discussions can, depending on the circumstances, be deemed a "practice of law." Consequently, I actually think that the discussion that is taking place in this thread is much LESS likely to constitute a "practice of law" than most of the discussions that take place on VJ every day. As such, although your concern for this website is commendable, your comments should be directed, if at all, towards other posters in other threads. If you wish to discuss this further, you are welcome to PM me.

[rebeccajo 14]

I tried.

[am1996 0]

I think the tax return example is a poor one. US Citizens are allowed to claim their foreign spouse on their taxes. I've filed taxes with my husband and I don't recall anywhere where I requested being treated as a US resident. I had no US income to claim anyway.

When you filed your tax returns, you had the option of being treated as a non-resident alien or a resident alien for tax purposes. See http://www.irs.gov/businesses/small/intern...d=96734,00.html Edited January 17, 2007 by am1996