Two Visitors. Two Marriages. Two Very Different Immigration Questions.
Consider these two situations.
Visitor No. 1: A Change of Plans
Maria is a citizen of Mexico and has a valid B-2 visitor visa. She has a job and a home in her country and comes to the United States for a three-week vacation.
While visiting California, Maria reconnects with an old friend, Daniel, a U.S. citizen. They had known each other before, but Maria had not planned to marry him or immigrate to the United States when she applied for her visitor visa or when she entered the country.
The relationship develops quickly. Several weeks after her arrival, Maria and Daniel decide to get married. They then begin exploring whether Maria can apply for lawful permanent residence in the United States.
Visitor No. 2: A Plan From the Beginning
Now consider David.
David also has a B-2 visitor visa. Before traveling to the United States, however, David has already decided that he wants to marry his U.S. citizen girlfriend and remain permanently in the United States.
He applies for the visitor visa and represents that he is coming temporarily. He enters the United States, marries his girlfriend shortly afterward, and files for adjustment of status.
On the surface, the two cases may look almost identical:
Both entered the United States on visitor visas. Both married U.S. citizens. Both want to apply for green cards.
But immigration law may view the cases very differently.
The critical question is not simply how soon the person married or how soon the person filed for adjustment of status.
The more fundamental question is:
What was the person's actual intention when the person applied for the visa and when the person entered the United States?
That distinction is at the heart of the issue of immigrant intent.
Why Does Intent Matter?
A B-1/B-2 visitor visa is a nonimmigrant classification. A person seeking admission as a visitor is representing that the purpose of the trip is temporary and that the person will comply with the terms of the visitor status.
If someone already intends to immigrate permanently but obtains a visitor visa or seeks admission as a visitor by representing otherwise, the government may examine whether the person made a material misrepresentation.
Under INA § 212(a)(6)(C)(i), a person who obtains a visa, admission, or another immigration benefit through fraud or willful misrepresentation of a material fact can be found inadmissible. The Department of State explains that such a finding requires, among other things, a willful and material misrepresentation.
But there is an important distinction:
Having a change of plans after entering the United States is not automatically the same thing as having lied when entering the United States.
The State Department's current guidance expressly recognizes that subsequent conduct inconsistent with what was represented at the time of visa application or admission does not automatically establish that the person's original intentions were misrepresented. The surrounding facts and evidence matter.
That is why Maria's case and David's case can raise very different issues even though their immigration histories may look remarkably similar on paper.
What About the 90-Day Rule?
You may have heard that someone should simply wait 90 days after entering the United States before getting married or filing for a green card.
That is an oversimplification.
The Department of State has a 90-day framework for certain cases involving conduct inconsistent with a person's nonimmigrant status. Under the current Foreign Affairs Manual guidance, certain inconsistent conduct within 90 days can result in a presumption of willful misrepresentation, subject to an opportunity for the applicant to rebut that presumption. Examples include a B-status visitor marrying a U.S. citizen or lawful permanent resident and taking up residence in the United States.
But 90 days is not a magic safe-harbor period.
After 90 days, the absence of the automatic presumption does not necessarily end the inquiry. The State Department's guidance specifically provides that if facts indicate the person misrepresented the purpose of travel when applying for the visa or admission, a traditional misrepresentation analysis may still be appropriate.
There is also an important distinction between Department of State visa adjudications and USCIS adjustment-of-status adjudications. USCIS removed references to the Department of State's 90-day rule from its own Policy Manual in 2021.
So the advice "just wait 90 days" is not a substitute for analyzing the actual facts.
The Real Issue Is the Timeline
For someone who entered the United States in a non-dual-intent classification and later wants permanent residence, the timeline can be extremely important.
An immigration attorney may want to know:
When did the person first meet the U.S. citizen spouse?
When did they begin discussing marriage?
When was the decision to immigrate made?
When was the visitor visa obtained?
What was said during the visa interview?
What was the purpose of the trip when the person entered the United States?
When did the person decide to marry?
When did the person decide to remain permanently?
When did the couple begin preparing immigration paperwork?
What actions were taken during the first 90 days?
Was the person maintaining a residence, employment, or other significant ties abroad?
Did anything happen after entry that genuinely changed the person's plans?
These facts can help distinguish a genuine change of circumstances from a situation in which the person may have entered the United States temporarily on paper but intended to immigrate all along.
The Bigger Question: What Is "Dual Intent"?
This brings us to an important concept in U.S. immigration law: dual intent.
Some nonimmigrant classifications allow a person to maintain nonimmigrant status while also pursuing permanent residence. H-1B and L-1 classifications are the most familiar examples.
In those categories, the existence of an eventual intention to become a permanent resident does not, by itself, necessarily prevent the person from obtaining or maintaining the nonimmigrant classification.
Other visa categories are different.
For those categories, the government generally expects the applicant to qualify as a temporary visitor and, where applicable, to maintain the required nonimmigrant intent.
This does not mean that a person in every non-dual-intent category is prohibited from ever becoming a permanent resident.
It means that the path to permanent residence must be analyzed carefully because the person's prior representations and intentions can become relevant.
A Change of Plans Is Not the Same as Fraud
This distinction is worth emphasizing.
People's lives change.
Someone may genuinely enter the United States intending to visit for a few weeks and later fall in love, get married, receive an unexpected job opportunity, or otherwise develop a legitimate reason to pursue permanent residence.
The fact that the person ultimately becomes a permanent resident does not, standing alone, establish that the original visitor entry was fraudulent.
The question is whether the evidence supports the conclusion that the person misrepresented a material fact or otherwise sought admission based on a false representation. Under the Department of State's guidance, the government should not equate later inconsistent conduct automatically with an earlier misrepresentation.
That is why the facts surrounding the person's original entry can be just as important as what happened afterward.
At Jos Immigration Law, we understand how important these cases are to the families involved. Our goal is to explain the process in straightforward terms, identify potential problems early, and help you understand your available options.
Whether you are considering filing a petition for a spouse, child, parent, or another qualifying family member, getting the right information at the beginning can make a significant difference.
If you are considering a family petition, contact Jos Immigration Law to discuss your situation and learn what immigration options may be available for your family.
This article is for general informational purposes only and does not constitute legal advice. Immigration laws and procedures can change, and the best strategy depends on the individual facts of each case.
