California  |  Immigration Law

Legal Question

Asked on: 8/03/10, 11:40 am

Dear Sirs,

the client is on a tourist visa and her fiance is an American citizen. They plan to get married in US, but they read in a couple of sources that she had to come back to her home country and apply for fiance's visa???? - is it true that they have to go through that or it is only the option for someone who is now in their home country?

Please clarify.

thank you and have a nice day!

3 Answers

Answered on: 8/08/10, 1:03 pm by Rahul Manchanda, Esq.

The issue boils down to the intent of the parties at the time of initial Visa procurement.

If, at the time of applying for a B1/B2 Visa at the US Embassy overseas, the party did not have immigrant intent, and he simply changed his mind while in the United States and decided to marry, then I see no problem with his US Citizen Spouse filing an I-130 Alien Relative Petition, I-485 Adjustment of Status, I-864 Affidavit of Support, I-693 Medical Examination, G-325A Biographical Data Forms, I-765 Employment Authorization Document, and I-131 Advance Parole Travel Documents concurrently while here in the United States.

However, if his intent initially was to marry this US Citizen, or to remain in the United States for a period longer than his authorized stay on the B1/B2 Visa pursuant to the date on his I-94 Arrival/Departure Record, then he has de facto violated the Immigration Laws and should return to his foreign country to apply for either a K-1 Fiance Visa or a K-3 Spousal Visa if they get married in the United States.

It is really very subjective.

Please call me at the law office at (212) 968-8600 or toll free at (866) 761-5308 if you have any additonal questions.


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Answered on: 8/08/10, 3:05 pm by Luba Smal


Are you an attorney? (you mentioned in your post that this is a question for a client).

I suggest you refer them to a knowledgeable immigration attorney.

If you would like to request a confidential legal advice or schedule telephone or email consultation regarding your specific situation, please email me directly at Attorney @ and I will send you a Questionnaire. Office Telephone line is 1-402-210-2040 (please EMAIL first to schedule a consultation appointment). I am an immigration attorney and work with clients from all States and globally. More information at

Note: The above response is provided for legal information purposes only and should not be considered a legal advice; it doesn’t create an attorney-client relationship. For more information or to schedule a consultation, please visit

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Smal Immigration Law Office PO Box 540531 Omaha, NE 68154

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Answered on: 8/09/10, 2:03 am by Michael Cho

I suggest contacting me for a free consultation here:

You can also find out more about the issue you posed on an article I wrote available here:

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Law Offices of Michael Cho 10940 Wilshire Boulevard, 16th Floor Los Angeles, CA 90024

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