Is It Legal to Propose While Your Partner Is Visiting on a Tourist Visa or ESTA?
Planning a wedding can be an exciting time filled with important decisions. You’ll need to choose between a courthouse ceremony or a traditional church wedding, decide on your guest list, and determine whether family members can attend. However, when a US citizen is thinking about proposing to their foreign national girlfriend who is visiting on a tourist visa or ESTA, there’s another critical factor to consider—the immigration implications of your decision.
Adjustment of Status (AOS): Key Eligibility Requirements
Adjustment of Status, frequently abbreviated as AOS, refers to the immigration process that takes place when an individual is already physically present in the United States. To be eligible for AOS, couples must meet several fundamental requirements:
- Bona fide marriage: The marriage must be authentic and based on genuine love and commitment
- Marriage to a US Citizen: One partner must be a US citizen who is sponsoring the other
- Financial support capability: The US citizen spouse must demonstrate adequate income to financially support their immigrant partner
- Lawful entry into the United States: The foreign national must have entered the country legally using a valid visa or visa waiver program (such as a Tourist Visa or ESTA)
Critical Warning: Utilizing a non-immigrant visa with the intention of immigrating is unlawful. This can result in application denial, financial penalties, and potential deportation.
Understanding the Risks of Using a Non-Immigrant Visa for Immigration
The manner in which a foreign national entered the United States plays a crucial role in determining eligibility for adjustment of status.
- A Tourist Visa or ESTA is classified as a “non-immigrant” travel authorization designed for temporary visits. When marriage is already planned, applying for a K-1 Fiancé Visa is the recommended approach.
- When someone enters the United States with the predetermined goal of remaining permanently and obtaining immigration status, they must use an Immigrant Visa. The K-1 Visa falls into this category of immigrant visas.
Improperly using a visa can expose individuals to allegations of visa fraud. US immigration authorities follow guidelines known as the 30/60 Day Rule (sometimes called the 30/60/90 Day Rule) and the 90 Day Rule. When immigration officials discover evidence of misuse or immigrant intent within the first 30, 60, or 90 days following entry, the non-immigrant visa holder may face financial penalties and potential deportation.
How the 30/60/90 Day Rule Works
USCIS uses the 30/60/90 day rule as a framework to assess whether someone who entered on a non-immigrant visa may have misrepresented their true intentions when arriving in the United States:
- Within 30 days: There is a strong assumption of misrepresentation if immigration-related activities take place during this period
- 31-60 days: A moderate assumption of misrepresentation applies
- 61-90 days: A weaker assumption exists, though the case will still be carefully examined
- After 90 days: Generally viewed as less concerning, though thorough documentation remains essential
Legitimate Exceptions That May Allow Adjustment of Status
In certain circumstances where no fraud was involved and circumstances changed unexpectedly, immigration authorities may allow adjustment of status. These legitimate exceptions typically include:
1. First Meeting Occurred After Entry
When a couple meets for the first time in the United States after the foreign national has already entered the country, this situation may qualify as a valid exception. The crucial factor is demonstrating that no marriage plans existed at the time of entry.
2. Unexpected Proposal During the Visit
If a couple who was dating meets in the United States, and the US citizen unexpectedly proposes marriage during the middle or later part of the visit, this may be considered a valid exception. The proposal must be genuinely unplanned and spontaneous.
3. Pregnancy Discovered During Stay
When a visitor on a Visa or Visa Waiver Program discovers they are pregnant during their stay and the couple wishes to remain together, this may be recognized as a valid reason for adjustment of status. Providing pregnancy documentation and medical records will be essential.
4. Serious Illness or Medical Condition
If the Visa or Visa Waiver Program participant becomes seriously ill and is medically unable to travel, this may qualify as an exception. Comprehensive medical documentation proving the inability to travel will be necessary.
Key Factors to Consider Before Proposing
If you’re contemplating proposing to someone who is visiting on a tourist visa or ESTA, keep these important points in mind:
- Original intent is crucial: If marriage was planned before US entry, you should pursue the K-1 Fiancé Visa route instead
- Timing significantly impacts your case: The 30/60/90 day rule means that immigration-related actions taken shortly after entry face greater scrutiny
- Evidence is essential: If you believe you qualify for an exception, you’ll need comprehensive documentation to support your claim
- Professional guidance is recommended: Seek advice from an experienced immigration attorney before taking actions that could impact immigration status
The Recommended Approach: K-1 Fiancé Visa
For couples who are planning to marry, the K-1 Fiancé Visa represents the appropriate legal route. This visa offers several advantages:
- Permits your fiancé to enter the United States with the specific purpose of getting married
- Eliminates the legal risks that come with using a non-immigrant visa for immigration purposes
- Establishes a straightforward, lawful process for adjustment of status following marriage
- Removes worries about potential visa fraud or misrepresentation allegations
Although the K-1 visa application process requires time and patience, it represents the most secure and legally compliant method when marriage is planned in advance.
Essential Points to Remember
If you’re in a situation where you’re thinking about pursuing adjustment of status after entering on a tourist visa or ESTA:
- Seek professional legal counsel: Immigration regulations are intricate, and errors can lead to severe consequences
- Maintain detailed records: Document when you met, when you made the decision to marry, and any circumstances that influenced that decision
- Always be truthful: Providing false information can result in permanent exclusion from entering the United States
- Recognize the limitations: Even when legitimate exceptions apply, approval of adjustment of status is never guaranteed
Keep in mind: The most secure strategy is always to select the correct visa type for your specific situation. When marriage is part of your plans, the K-1 Fiancé Visa is the appropriate and recommended pathway.
Have Questions?
For more information about immigration processes and frequently asked questions, visit our FAQ page.