Can You Propose on a Tourist Visa or ESTA?
Marriage and the thought of marriage can be exciting. You have to decide if a courthouse wedding would be enough, or if a church wedding is preferred. You have to consider who to invite and can family attend. When a US Citizen is considering proposing to their girlfriend who is a foreign national, you have to consider what happens next—the immigration filing.
Adjustment of Status (AOS): What are the Common Eligibility Requirements?
Adjustment of Status, also commonly referred to as AOS, is the immigration filing that occurs when someone is in the United States. In order to qualify for AOS, the following basic requirements are needed:
- Marriage for love: The marriage must be genuine and entered into in good faith
- Marriage between the Visa Holder and a US Citizen: One spouse must be a US citizen
- US Citizen is financially responsible: The US citizen must have sufficient income to support the immigrant spouse
- Legal, unrestricted entry into the United States: Entry must have been made with a valid visa or visa waiver (e.g., Tourist Visa or ESTA)
Important Warning: Using a Non-Immigrant Visa for purposes of Immigration is illegal. Risks of denial, fines, and deportation exist.
Carefully Consider the Risks of Immigrating Through a Non-Immigrant Visa
How someone arrived in the United States is critically important when considering adjustment of status.
- A Tourist Visa or ESTA is a “non-immigrant” item used to enter the United States. If plans for marriage are occurring, using a K-1 Fiancé Visa is best.
- If someone enters the US with the intent to stay forever and immigrate, then an Immigrant Visa is required. The K-1 Visa is an immigrant visa.
Misusing a visa can run the risk of visa fraud. Immigration has a policy/guideline called the 30/60 Day Rule (also known as the 30/60/90 Day Rule) and the 90 Day Rule. If misuse or immigrant intent is found within the first 30, 60, or 90 days after entry, the use of the non-immigrant visa would be punishable by fine and deportation is possible.
Understanding the 30/60/90 Day Rule
The 30/60/90 day rule is a guideline used by USCIS to determine whether a non-immigrant visa holder misrepresented their intent when entering the United States:
- Within 30 days: Strong presumption of misrepresentation if immigrant activity occurs
- 31-60 days: Moderate presumption of misrepresentation
- 61-90 days: Weak presumption, but still subject to scrutiny
- After 90 days: Generally considered less problematic, but still requires careful documentation
Common Exceptions That Could Permit Immigration on the Tourist Visa or ESTA
Immigration may permit an adjustment of status when no fraud occurred, and life just happened. These exceptions include situations where:
1. Spouses Met in the US for the First Time
If the spouses met in the US for the first time after the foreign spouse entered the US, this may be considered a legitimate exception. The key is that there was no pre-existing plan to marry when entering the country.
2. Surprise Marriage Proposal During Visit
If a boyfriend and girlfriend meet in the US, and the US Citizen surprised the other with a marriage proposal during the middle or end of the trip, this may qualify as an exception. The proposal must have been unplanned and unexpected.
3. Pregnancy During Visit
If the Visa or Visa Waiver Holder became pregnant during their visit and now the couple wants to stay together, this may be considered a legitimate reason for adjustment of status. Documentation of the pregnancy and medical records will be important.
4. Medical Emergency or Illness
If the Visa or Visa Waiver Holder became ill and unable to travel, this may qualify as an exception. Medical documentation and proof of the inability to travel will be required.
What You Should Know Before Proposing
Before proposing to someone on a tourist visa or ESTA, consider the following:
- Intent matters: If you had plans to marry before entering the US, you should use the K-1 Fiancé Visa instead
- Timing matters: The 30/60/90 day rule means that actions taken soon after entry are scrutinized more heavily
- Documentation matters: If you qualify for an exception, you’ll need strong evidence to support your case
- Legal advice matters: Consult with an immigration attorney before making decisions that could affect your immigration status
The Better Alternative: K-1 Fiancé Visa
If you’re planning to marry a foreign national, the K-1 Fiancé Visa is the proper legal pathway. This visa:
- Allows your fiancé to enter the US specifically to marry you
- Avoids the risks associated with using a non-immigrant visa for immigration purposes
- Provides a clear, legal pathway to adjustment of status after marriage
- Eliminates concerns about visa fraud or misrepresentation
While the K-1 visa process takes time, it’s the safest and most legally sound approach when you have plans to marry.
Important Considerations
If you find yourself in a situation where you’re considering adjustment of status after entering on a tourist visa or ESTA:
- Consult an immigration attorney: The rules are complex and mistakes can have serious consequences
- Document everything: Keep records of when you met, when you decided to marry, and any circumstances that led to the decision
- Be honest: Misrepresentation can result in permanent bars from entering the US
- Understand the risks: Even with legitimate exceptions, adjustment of status is not guaranteed
Remember: The safest approach is always to use the appropriate visa for your intended purpose. If marriage is planned, the K-1 Fiancé Visa is the proper pathway.
Have Questions?
For more information about immigration processes and frequently asked questions, visit our FAQ page.