Overview of marriage visas and fiancée visas

The complexity of bringing a fiancée or current spouse to the United States

The question of how to bring a fiancée or even spouse to the United states is relatively complex and in any event is more complex than perhaps it should be.

The prohibition on fiancées or spouses from entering the US on a tourist visa

Contrary to what might seem logical, a fiancée or spouse should not enter the US on a tourist visa-or visa waiver-if their intent is to remain in the United states permanently at the time of entering. 

In essence, if a fiancée or spouse plans to come to the United States with the intent to stay in the U.S.  permanently & in due course petition for a 'Green card'- she or he is technically and legally ineligible for a Tourist visa & instead should apply for either a Fiancée visa (K-1) or a spousal visa (K-3). A further option, at least for the spouse of a US citizen, would be to obtain his or her 'Green card' directly from the U.S.  Consulate  or Embassy in his or her native country before leaving for the Unites States, that is if the Embassy or consulate will process the application

What is the legal justification for this prohibition?

As, at the time of entering the United States, they have the intent to remain permanently in the United States, they a re precluded form entering on a tourist visa as such a visa requires that the holder have a 'temporary ' or nonimmigrant intent. Indeed, by representing themselves to be a tourist they could well be accused of having committed 'visa fraud'. This in itself could have very serious negative consequences.

NOTE-These rules apply whether or not the individual arrives in the United States so a 90 day visa waiver-issued to most developed countries, such as the UK, Japan, France Germany, Australia etc.. or if they have managed to persuade a US consulate to issue them a B1/2 tourist visa.

What are the consequences of marrying a US citizen after originally entering the US on a  Tourist visa or a 90 day visa waiver

Firstly, it is legitimate to enter  the US on a tourist visa or visa waiver and marry a U.S. citizen if AFTER doing so you actually intend to return to your home country.

However, if someone simply enters as a tourist and subsequently marries a US citizen or otherwise applies for a Green card thru the adjustment of status process, and does so soon after entering as a tourist the Immigration service could accuse them of 'visa fraud'.

By and large,  the 30/60/90 day rule is applied to determine whether the 'tourist' had a fraudulent intent upon entry. 

The rule is applied as follows;

bulletIf s/he applies for a green card/adjustment of status within 30 days of entering the US, fraud is pretty much presumed-and the application will be denied
bulletIf s/he enters between 30 & 60 days, the presumption of fraud can be overcome, i.e. it is  'rebuttable'
bulletI s/he enters between 60 and 90 days the presumption reverses.  Unless there is specific evidence of a preconceived immigrant/fraudulent intent   the adjustment of status application will be granted
bulletFor an application filed more that 90 days after entry , the visa fraud issue seldom arises

If fraud is found, then the consequences could be severe. At the very least the applicant will be required to return to his or her home country to file for a fiancée of spousal visa. In the worst case, the individual could be barred from re-entering the United States in the future under any circumstances.

To summarize: DO NOT ENTER THE UNITED STATES ON A TOURIST VISA IF YOU HAVE AN INTENT TO REMAIN THERE PERMANENTLY. TAKE TIME TO OBTAIN THE CORRECT VISA HOWEVER  INCONVENIENT THAT MAY SEEM TO BE.

Summary of the correct means for your spouse or fiancée to come to the United states permanently-the three basic options

(A) Apply for  a fiancée (K-1) visa

Basic requirements

bulletS/he must be coming to marry a  U.S. citizen and NOT a Green card holder
bulletYou must have actually met her within the preceding 2 years-certain limited exceptions apply here
bulletYou must both be legally able to marry-all prior divorces must have been finalized
bulletThe US citizen must be able to financially support the overseas spouse or fiancée

(B) Get married to the individual, probably by traveling to his or her home country, and then apply or a Spousal (K-3 visa)

(C) Get married to the individual, probably by traveling to his or her home country & then apply directly for a 'Green card' via the US Embassy or consulate in that home country

Which of the above is the fastest?

This depends on certain factors, including:

bulletYour intended state of residence  in the United States - the fact is the processing time for K1  applications varies greatly depending upon where the application is actually filed-whereas all K3 applications theoretically should take the same time
bulletThe policy and filing delays of the US Embassy or Consulate in the country of residence of your fiancée/spouse-some will accept direct filings , others will not.

In conclusion, this is a relatively complex area which must be properly addressed to ensure success and to avoid problems.