Wednesday, August 7, 2019

Why Not to Consider Getting a Tourist Visa for your Pinay GF

Some people think that getting a tourist visa for their pinay GF/potential wife would expedite the visa process for their significant others.  However, on the contrary, it creates greater problems by creating the presumption of marriage fraud.  This is not a new concept, but appears to be little known to a lot of people.

Under the Old Rules

Under the old Foreign Affairs Manual (FAM), if a foreign national enters under a non-immigrant visa (e.g. tourist  visa) and marries either a US Citizen or a Lawful Permanent Resident and applies for adjustment of status within the first thirty (30) days of entry, the USCIS presumes that the foreign national misrepresented his/her intention.  Because as a rule when a foreign national applies for a non-immigrant visa, he/she represents that he/she shall not engage in conduct inconsistent with his/her visa.

The applicant may rebut this presumption, if the marriage and application for adjustment of status occurred after sixty (60) days from entry.  

Otherwise, the foreign national may be subject to removal proceedings based on the ground of marriage fraud.

Under the New Rules

Under the new FAM, the following are considered conduct inconsistent with a non-immigrant visa:

(2)  (U) Inconsistent Conduct Within 90 Days of Admission to the United States:
x x x

(b)  (U) Inconsistent Conduct:  For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status depends on the nonimmigrant status the applicant has/had and the activities of the applicant in such status, including, but not limited to:
(i)     (U) Engaging in unauthorized employment on B1/B2 nonimmigrant status. (Note: Certain activities may not constitute unauthorized employment, such as those permissible under 9 FAM 402.2-5(E)and you should clarify an applicant's employment activities when make a 6C1 finding under the 90 day rule);
(ii)    (U) Enrolling in a course of study, if such study is not authorized for that nonimmigrant classification (e.g., B1/B2 status);
(iii)    (U) A nonimmigrant in B status, marrying a United States citizen or lawful permanent resident and taking up residence in the United States. (Note: to establish that an applicant took up residence in the United States before/after marrying a U.S. citizen or LPR, post may take into account whether the applicant signed a long-term lease or obtained a mortgage, bills in the applicant’s name, whether the applicant obtained a local driver’s license, and any other evidence that may support a finding that the applicant took up residence in the United States); or
(iv)   (U) Undertaking any other activity for which a change of status (NIV to NIV) or an adjustment of status (NIV to IV) would be required, without the benefit of such a change or adjustment.  (Note: Simply filing for a change of status or adjustment of status is not in itself sufficient to support a presumption of misrepresentation under the 90 day rule; the alien must also engage in conduct inconsistent with authorized status without the benefit of such a change of status. Moreover, if an alien engages in the activities for which he/she was admitted, such as to study on a F1 visa, but also engages in unauthorized work without seeking an employment authorization document (EAD), then that is insufficient to justify a presumption of a misrepresentation.)

Better to Apply for One of the K visas

During the period that the boyfriend/girlfriend is under a Tourist Visa, he/she cannot work, and has no access to any healthcare; the latter being the riskier of all since no one knows for sure whether any health emergency may happen.  Of course if he/she has some kind of travel insurance, that may help, but most travel insurance only offers reimbursement and that means the US Citizen/LPR boyfriend is still on the hook for whatever cost may be incurred as a consequence.

On the other hand, if the US Citizen/LPR only wants to know better if they are a perfect match, then why not get a Fiance Visa and they have 90 days within which to marry.  Otherwise, if things don't work out, the foreign national can just go back to his/her country without incident or danger of being barred from any future travels to the US.

The only advantage that can be seen from using the Tourist Visa route is the initial cost to get it, which is far cheaper than the K visa.  But it has too many potential problems that it is far better to choose to take the K visa routes than to use a Tourist Visa to get your boyfriend/girlfriend.

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