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Q & A: Visa Fraud

What is Visa Fraud?

A Department of State agent may conclude that a person is not eligible to enter the U.S. or a CIS officer may conclude that a person is not eligible to receive a green card (Lawful Permanent Residency) if the person committed visa fraud.  Some common examples of visa fraud include:

(a) Entering the U.S. on a temporary visa (like a visitor’s visa) but with the real intention to marry a U.S. citizen right away and live in the U.S. permanently;

(b) Entering the U.S. on a temporary visitor’s visa but with the intent to start working for a U.S. employer on that visa;

(c) Entering the U.S. on a temporary visitor’s visa with the intent to enroll in a university or educational program instead of obtaining a student visa;

How can Visa Fraud Be Overcome?

There are exceptions to the presumption of visa fraud in many cases. Regardless, the immigrant must be able to convince the CIS officer that their was no preconceived intent to violate or evade U.S. immigration law.  This is not always easily done and each case where this issue arises must be thoroughly documented.

The 30 v. 60 day fraud presumption in marriage cases:

If a person entering the U.S. on a temporary visa marries a U.S. citizen within 30 days of entry, a strong presumption of visa fraud is created and could lead to the immigrant being denied a green card, despite their marriage to a U.S. citizen. Their is no longer a presumption of visa fraud if the immigrant waits at least 60 days from entry into the U.S. to marry a U.S. citizen.  However, this issue will still likely surface at the green card interview if the officer is skeptical about the alien’s intent upon entry and in the case of an immigrant entering the U.S. on any temporary visa except for a fiance visa. 

The traditional course and most clean route to marriage-based sponsorship is by first obtaining a fiance visa and entering the U.S. with that visa, to avoid any presumption or hint of visa fraud.  This route, however, is not always convenient or practical for many couples due to the longer processing times with fiance visa approvals and consulate interview scheduling.  A couple may still be able to obtain a green card for the immigrant spouse, even if the spouse entered on a visitor’s visa or other type of temporary nonimmigrant visa but the issue of visa fraud should always be considered prior to starting any case.

The above information is general in nature and is not intended to be considered or relied upon as legal advice. You should always consult an attorney to determine if what immigration options are available to you and to determine how any recent changes in the law could affect your situation.

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