There are certain types of visas where you cannot have a "dual intent" - as in you can't intend to remain in the U.S. permanently when you very clearly entered for temporary reasons. Those visa categories include B-1/B-2 Visitors, F-1 Students, J-1 Exchange Visitors, E-3 Visa Holder, Q Cultural Exchange Visitors, TN Visa Holders, and ESTA Visa Waiver Visitors. So what happens when you meet the love of your life who happens to be a US citizen and who happens to want to marry and petition for you to remain in the country permanently? Immigration has adopted the “30/60/90 Day Rule” used by the Department of State in their Foreign Affairs Manual (9 FAM 40.63 n4) when looking at changes to a visa that are made shortly after arriving in the United States. Here is what you need to know about that rule:
(1) If this was love at first sight, my advice would be...SLOW DOWN. If you marry within 30 days of your arrival, and then file for your residency also within that 30 days, your marriage is PRESUMED to be a fraud. Immigration officers are not romantic. They do not believe you fell in love 5 days after arriving and you just couldn't wait to get married. This presumption is virtually impossible to overcome.
(2) If you get married between 31 and 60 days of your arrival, and you file for your residency within that time as well, that takes you out of the PRESUMED fraud category, but there will still be a strong presumption that the marriage was entered into "in bad faith," i.e. just because you want a green card. This means that the application will be looked at very closely, and that when the interview comes around, you will be scrutinized. This would likely include being separated during the interview and being asked everything from which side of the bed you sleep on, to where your spouse keeps their socks. It could also mean what immigration likes to call "bed checks," which involves them showing up at your house unannounced at an ungodly hour in the morning or night to check and see that both of you are actually living together.
(3) If you marry and file 61 days or more after your entry into the country, the presumption will be that your marriage is real. Even though case law indicates that your intent when you entered the country (i.e. the fact that you inteded to stay here for longer than your visa allowed) shouldn't be a grounds for a denial of your residency, it is always best to wait (if you can) and file for your residency at least 61 days or more after you entered the US.
(4) All of the above does NOT apply if you entered the country on a Visa Waiver - that would mean that you are from what immigration likes to call a "preferred country" where you do not need to obtain a visa before entering the US, but rather you just fill out a little card on the plane that states you aren't going to stay beyond your authorized 90 days. Generally, people who entered on a visa waiver cannot apply for residency UNLESS they have an IMMEDIATE RELATIVE who is applying for them, in this case, a US Citizen husband or wife. In this situation, you want to marry AND file everything BEFORE the expiration of your 90 day visa. This cut off date is VERY IMPORTANT because while filing after the 90 days has expired is possible, it is much more risky.
As always, I have tried to describe all of this in the most simple terms and you should seek competent legal advice if you think any of the above applies to you.
