Legal Question in Immigration Law in Washington

entered on visa waiver now want to get married

Iím a Canadian that came into the US by car a month ago on a visa waiver. I had problems at the boarder because I came in with my fiancee and had to prove I was leaving theUS within a certain amount of time. They said it looked like I was living in the US illegally. So, I know my passport has been flagged. We have been engaged for 2 years but had made no official plans to be married.

Since entering the US last month, we have decided to get married, so I am not leaving the US on the day I said I would.

Our question is when should we get married. We heard about the 30-60-90 day rule but itís a bit confusing. We were planning on getting married in April (it would be 87 days after entry). Is this close enough to the 90 days or should we wait until the 90 days have past. If they flagged my passport as possibly entering the country in order to get married, what would happen if we were married in 90 days? We did tell them we were engaged but that we had no set wedding plans for the near future.

Asked on 3/10/08, 2:49 pm

1 Answer from Attorneys

Amir John Showrai The Pacific Law Firm, PLLC

Re: entered on visa waiver now want to get married

There are lots of ways that you can handle this matter. Before I go into that, first, as a visitor from Canada, you are allowed to remain in the USA for up to 180 days.

As to what you can do, one option is to get married here, and and remain here while we file paperwork to adjust your status to obtain your green card (legal permanent residency).

Another option is to get married here, return to Canada, and then file for a "fiancee" visa, which is the same as they give to married persons. This will allow you to enter the USA with permission to work, until your adjustment to legal permanent residency is being processed. The disadvantage to this idea is that you will have to wait outside Canada for at least a couple of months while the fiancee visa is processed.

The disadvantage to the first method is that USCIS may give you a hard time, if you get married and remain here while the papers are being processed, because the issue of whether you were an "intending immigrant" versus a non-immigrant visitor may come up. I have dealt with this situation many times with Canadians, and given that even if they were to remove you from the USA, as a spouse of a citizen, you are almost for sure going to be allowed to return, so the feeling has usually been, why bother removing the person, especially if the USCIS officer feels that the marriage is genuine.

The third, and least recommended way to handle the matter, is to wait until you leave the USA, then apply for a fiancee visa, then enter the USA and get married. (Note, you have 90 days to get married after you enter on a fiancee visa otherwise you lose your status.) The downside is that you have to go through the additional hoops of getting married within 90 days of entry and that you need to prove the relationship is genuine, which actually should not be a big problem, for you, given that you have been together for 2 years. On the other hand, your residence during the last two years may come up, and I would guess that you have spent a fair amount of time in the USA, which can again, lead to more problems. This third option is the least desirable for all the problems that can come up, but which are not fatal to your situation, but rather, may add time to your application's processing.

I am happy to offer a free telephone consultation, if you wish to explore in detail what is involved. From there, you can make an informed decision about how to proceed. Best of luck!

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Answered on 3/10/08, 3:13 pm

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