Question: I am a Chinese citizen, and I have a U.S. tourist visa. My boyfriend is a U.S. citizen who lives in the U.S. We have talked about marriage, but we have not decided whether we want to get married yet. If I travel to the U.S. on a tourist visa and then decide to marry my boyfriend, can I apply for a green card in the U.S.? Or do I have to leave the U.S. and then apply for a green card?
Answer: If, at the time you enter the U.S. on a tourist visa, you intend to immigrate to the U.S., you may be ineligible to receive a green card. However, if, at the time you enter the U.S. on a tourist visa, you fully intended to timely depart from the U.S. and decided to immigrate only after entering the U.S., you may be eligible to receive a green card.
Immigration fraud vs. legal tourism
A tourist visa is a non-immigrant visa. You may use a tourist visa to visit the U.S. temporarily. If you apply for a tourist visa with the intention of using it to immigrate to the U.S., this is a form of immigration fraud. Similarly, if you already have a tourist visa and you use your tourist visa to travel to the U.S. for the purpose of immigrating to the U.S., this is also a form of immigration fraud.
A person who commits immigration fraud or obtains a visa by misrepresentation is ineligible to apply for a green card in the U.S.
However, immigration laws account for the fact that plans change. If you traveled to the U.S. on a tourist visa and intended to leave the U.S. at the time you entered the U.S., and then made the decision to immigrate to the U.S. only after you entered the U.S., this is not considered immigration fraud. The key factor is when you made the decision to immigrate to the U.S.
How does USCIS know when a person decided to immigrate to the U.S.?
USCIS officers cannot read your mind. They do not know when you made the decision to immigrate to the U.S. But they can guess your intent based on your actions. If you enter the U.S. on a tourist visa and immediately marry your boyfriend, this is a clear signal to USCIS that your purpose for entering the U.S. was to immigrate.
Similarly, if you lie to U.S. Customs about your travel itinerary, this may be a signal that you have also lied about your intent in entering the country. For example, if you tell U.S. Customs that you planned to stay with a relative while in New York, but as soon as you enter the U.S. you move in with your boyfriend in California and never visit your relative in New York, this is a signal that you were not truthful regarding your intent.
If USCIS concludes that you used a tourist visa to immigrate to the U.S., USCIS may deny your green card application.
The bottom line
You have the burden of proving to USCIS that you are eligible to receive a green card. If you lied to U.S. Customs or if you get married as soon as you enter the U.S., USCIS might determine that you you are ineligible for a green card.
If, at the time you entered the U.S. on a tourist visa, you fully intended to timely depart the U.S. but changed your mind only after entering the U.S., you may apply for a green card in the U.S. You may also wait in the U.S. while your green card application is processing.
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ImmiFree.Law is The Harrison Law Firm P.C.’s online platform to make the family immigration and naturalization process more efficient, accurate, and affordable. Baya Harrison, Esq. is an attorney licensed in New York, Florida, and California. Attorney Harrison has helped numerous individuals and families navigate the U.S. immigration process, specifically family-based petitions and naturalization.