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Shouldn’t following the immigration procedure be the rule of thumb for those privileged to enter the United States on non-immigrant visa (NIV) or immigrant visas (IV)?

NIV covers tourists, students, artists, investors, treaty traders, athletes, etc.  IV covers (a) immediate relatives whose visas are immediately available for processing (such as parents, spouses, minor children of U.S. citizens); and (b) preference relatives whose visas are subject to numerical wait (such as spouses, minor children and over 21 years old, unmarried children of lawful permanent residents [LPR]); children of US citizens 21 years and older, married or not; and siblings of U.S. citizens.

Recently, we heard stories about U.S. port-of-entry officials’ propensity for  “interrogation” of visitors  as being the norm, rather than the exception. Customs and Border Patrol (CBP) officers have no qualms asking if you have a boyfriend or girlfriend in the U.S. because they are trying to prevent entrants who would violate the law, overstay and eventually marry in the U.S. 

Despite warnings, it still happens. Visitor’s visa holders who have fiancé/es residing in the U.S. with proper documentation enter the country to marry, overstay and adjust status to obtain their green cards.

The history of U.S. immigration shows that there is a quota system in place precisely to control the number of immigrants from each country who are allowed to come into the U.S.

Immigrants entering the United States are issued green cards upon entry, but not those entering who are holders of visitor’s visas or other non-immigrant visas. History further shows that the process called “adjustment of status” was a later addition to the Immigration and Nationality Act (INA) in response to a growing dilemma faced by aliens who are already residing in the U.S. They are undocumented (but were inspected at their initial entry) and marries U.S. citizens.

It became imperative for U.S. immigration authorities to avoid the expense and inconvenience of sending the aliens back to their country just to obtain a  visa (as the rules require) and come back again to the U.S. to rejoin the  U.S. citizen- spouses.

In this case, the alien-spouse is presumed to be residing in the U.S. when the marriage to the U.S. citizen occurred. Opting for adjustment of status rather than consular processing, by deliberately using one’s visitor’s visa to enter the U.S. and marry, was not intended by the rules.

This prompted immigration officers to doubt the true intent of  starry-eyed tourists and question their entry on visitor’s visas. Ordinarily, U. S. citizen-spouses petition for their alien spouses who are overseas with their visas processed on the consular level.

There are times that the spouse residing in the U.S. is not yet a U.S. citizen.  If such is the case, the alien-spouse who is present in the U.S. as a visitor is not considered as an immediate relative and, therefore, cannot adjust status until the U.S. spouse becomes a citizen.

One exception to this would be if the alien-spouses can avail themselves of Section 245(i), more popularly known as the “Sunset Law,” but there should be a petition filed for such alien-spouse before April 30, 2001. This petition could be totally unrelated to the present spousal petition.

Another exception is when the alien spouse has another visa (such as work, student and investor’s visa) that makes the stay legal until the visa becomes available for processing. But remaining in the U.S. in an “overstaying” status will not allow the alien-spouse to work, and the visa will not be a  protection from being subjected to removal proceedings – that is if he/she is found to have violated immigration and other laws. 

We weigh the risks we take in our lives. But there are certain cases when shortcuts are not meant to be taken. If one follows the rule of thumb, then the LPR would petition an alien-spouse from the home country to come to the U.S., with the visa issued through consular processing.  The waiting period for the spousal visa to be available if the petitioning spouse is a LPR is two years on average. Ordinarily, a LPR can apply for U.S. citizenship in five years from becoming a LPR.

Alien spouses on “overstay” status tend to “hide in the shadows or stay under the radar,” adding anxiety to the long wait. Waiting for visas is not something romantic, and so is being denied entry at the border or being subjected to  deportation.

(Note:  Maria Rita Reyes-Stuby is a licensed attorney in Michigan.  She is a graduate of the University of the Philippines College of Law. She specializes in immigration and practices in Las Vegas, Michigan, California and other states.  Bernadette Bretana, a graduate of the Ateneo Law School and Ms. Stuby are licensed attorneys in the Philippines. Please call @702-403-4704 or email her at [email protected] or go to www.mrstubylaw.com for any questions on this article.)


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