Can my fiance enter the United States on a Visa Waiver, marry, then apply for a Green Card (Adjustment of Status)?

Using the Visa Waiver Program (VWP) to enter the United States and apply for a green card may result in the denial of the application for legal permanent residence.

Question

I’m a US citizen who has agreed to marry a guy from another nation. He has visited the United States many times under the Visa Waiver Program. But now everyone is telling me that he needs to go through the far lengthier process of acquiring a fiancé visa to come to the U.S. in order for us to be married and apply for his green card. Why can’t he simply come in on the Visa Waiver and we’ll take care of the wedding and green card procedures after he arrives?

Answer

Your approach seems to be reasonable on the surface, but immigration law and common sense do not often coincide. In reality, the approach you propose would constitute a fraudulent use of the Visa Waiver Program (VWP), which might lead to the denial of your new husband’s application for legal permanent residency (a green card).

Let’s take it one step at a time. Assume your fiancé takes a lengthy aircraft ride to the United States, where he is greeted by a Customs and Border Protection (CBP) officer who inquires about his reason for entering the country. Your fiancé has said that he intends to marry and seek for a green card. The CBP officer tells your fiancé that his admission is refused because the Visa Waiver program is exclusively for those visiting the United States for no more than three months (90 days) for pleasure or business, and who have no intention of living in the country permanently. Your fiancé would very certainly have to return to his own country on the following flight.

Let’s imagine your spouse successfully bluffs to a CBP officer and wins admission into the United States. You marry and file an application for adjustment of status (a green card) with US Citizenship and Immigration Services (USCIS). At your green card interview, the USCIS officer sees that your wedding occurred not long after your husband’s VWP entrance, asks inquiries, and may finally find that your spouse committed fraud upon admission and is so ineligible. Your spouse has been refused a green card and is facing deportation.

You and your spouse would not be the first to make such an error. In rare situations, and after paying a lot in legal expenses, the applicant could qualify for a waiver of the fraud and acquire the green card.