The Immigrant Intent Issue for US Citizen Marriage Green Card Cases

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20130201_161145Immigrant Intent

Having immigrant intent when you came to the United States on a non-immigrant visa can be a basis for inadmissibility or denial of your green card application. Even if the I-130 petition filed by your husband is approved, meaning the USCIS finds that your marriage and relationship was real and not done for immigration purposes, the I-485 or green card application (adjustment of status) can be denied due to this immigrant intent.

So what are the bases for immigration officers to find immigrant intent?

Actually there are a lot of factors that come into play. Some applicants even say outright at the interview that when they last came to the United States on a specific non-immigrant visa, let’s say a tourist or H-1B visa, or even a visa waiver, that they came with the intent of marrying their spouse and immigrating to the United States. Some applicants had that intention when they came in, get married immediately upon entry, and would thus raise suspicion with the officers.

Some people though may “seem” to have immigrant intent, but actually have none.

Let’s say you came to the U.S. on a non-immigrant visa intending to only visit, study, or work (depending on which type of visa), have a girlfriend or boyfriend, and while here, you and your special friend decide on getting married and you decide to apply for a green card, then that clearly is not immigrant intent. The decision came only while you were here, not before or while entering the United States.

Sample Fact Patterns

Sample 1

  • A and B have known each other over the internet for 1 year.
  • A is from a foreign country and B is from the US.
  • They eventually intend to get married, and A intends to come to the US to get married and immigrate.
  • A applies for a non-immigrant visa such as a tourist and tells the consul that A’s intention is to just visit.
  • A’s tourist visa gets approved.
  • A goes to the US.
  • A gets married and applies for a green card.
  • Immigrant Intent: Yes.
  • What Should Have Been Done: B could have visited A, got married, came to the US, and filed petition for him on the way to consular processing for the immigrant visa. Or B could have visited A at an point over the past year (the rule is 2, but the fact pattern here says they’ve known for a year), came back to the US, and did a fiance petition on the way to the fiancé visa processing.

Sample 2

  • A and B have known each other over the internet for 1 year.
  • A is from a foreign country and B is from the US.
  • They eventually intend to get married, and A intends to come to the US to get married, but A and B intended to eventually live at A’s home country (foreign country and not the US). So there was an intent to get married, but not an intent for A d to immigrate to the US.
  • A applies for a non-immigrant visa such as a tourist and tells the consul that A’s intention is to just visit.
  • A’s tourist visa gets approved.
  • A buys a round trip ticket.
  • A goes to the US.
  • A gets married and does not apply for a green card immediately.
  • A few weeks later, A changed her mind, enjoys life in the US, and A and B decide to settle in the US. A decides while in theUS to apply for a green card.
  • Officer at interview goes through extensive questioning but A explains to officer that A’s mind changed while here in the U.S., and that A did not have any intent to immigrate when A entered.
  • Immigrant Intent: No

Sample 3

  • A and B have known each other over for over 5 years.
  • A is from a foreign country and B is from the US.
  • A has been to the US several times on a tourist visa and B has been to A’s home country several times.
  • A and B have a boyfriend / girlfriend relationship, but still did not intend to get married.
  • A visits B again in theUS with no intention of immigrating.
  • B proposes, and A says yes.
  • A gets married.
  • Officer at interview goes through extensive questioning but A explains to officer that A did not intend to get married, was proposed to while she was here, and A said yes.
  • Immigrant Intent: No.

Sample 4

  • A and B have known each other over for over 5 years.
  • A is from a foreign country and B is from the US.
  • A has been to theUSseveral times on a tourist visa and B has been to A’s home country several times.
  • A and B have a boyfriend / girlfriend relationship, but still did not intend to get married.
  • While B was in A’s home country, B proposes, and A says yes.
  • They get married in A’s home country (foreign country).
  • They intend to live in the US for good.
  • A has a 10 year tourist visa that is still valid.
  • A comes to the US and files for a green card.
  • Immigrant Intent: Yes (But note, if they got married abroad, but came to the US WITHOUT A intending to immigrate, meaning they are still not sure where to settle, but while here in the US they change their mind and decide to settle here, then there is no immigrant intent).
  • What Should Have Been Done: A should have stayed in A’s country while B, after going back to the US, files an I-130 immigrant petition for A, on the way to consular processing.

The 30/60/90 Rule

There is also this 30 / 60 / 90 day rule that the USCIS adopts in adjudicating green card applications based on marriage. This is found through the Department of State’s Foreign Affairs Manual (9 FAM 40.63 n4) when examining events that occur shortly after entry to the USA

30 Day Rule: If you file your green card application within 30 days of entry, there is a presumption of immigrant intent. It’s not an automatic finding and denial, it is just a presumption. It can be rebutted by you and your spouse depending on your real intent and answer to the questions. Let’s say you had no intention to immigrate, but got proposed to or thought of marrying a week after entry, and then you filed for a green card within the 30 day period, then there ultimately should not be a finding of immigrant intent, because there was none.

60 Day Rule: If you file your green card application within 31 to 60 days of entry, there is no presumption, but there is a reasonable suspicion of immigrant intent. Inquiries would still be made as to your intent upon entry, but it is not as strict as the 30 day rule.

90 Day Rule: If you file your green card application 61 days and beyond (not sure how the 90 came in, but that’s the memo), then there is a presumption that you acted in good faith. Officers may still ask though what your intention was upon entry, and if immigrant intent was found then the results could still be a finding of immigrant intent.

What Happens If Immigrant Intent Is Found

If immigrant intent is found, then the I-485 green card application will be denied. Some may issue a Notice of Intent to Deny and allow you file an I-601 waiver. It depends on the office’s policy.

If it is denied, you would then have to re-file the I-485 with an I-601 hardship waiver to waive the grounds for inadmissibility. I-601 hardship waivers are tough. You would have to show that there will be extreme hardship to your U.S. Citizen spouse if 1) you are to be abroad with your spouse in your home country; or if 2) you are to be separated with your spouse, meaning your spouse is in the US and you are abroad.

The I-130 petition will still be approved if you are able show a bona fide marriage, but  it won’t grant you a green card because of the immigrant intent and I-485 denial. An approved I-130 will also not allow you to get a work permit.

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