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Ely
Ely, Counselor at Law
Category: Immigration Law
Satisfied Customers: 100053
Experience:  Private practice in several areas, including immigration
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I have had a colleague who I worked with for two years in

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I have had a colleague who I worked with for two years in China and have now known for almost three years. She became a close friend and visited the U.S. last year a couple of times. She visited this year while I was going through a divorce. She and I also went our separate ways and she was in NYC for three months and then we contacted one another and then became more serious. She arrived in the U.S. this year around May 1st and then left for Canada on May 14th. She arrived back in the U.S. on June 3rd in NYC. As I mentioned we saw one another briefly over the July 4th holidays and then had no contact for a couple of months. In Sept we took a trip out west and was talking about marriage. However, she is on a tourist visa and is a Chinese citizen. She and I traveled together from Sept 15th till Oct 3rd when we talked about getting married. However, we thought about getting married in Vegas, however, she wanted to visit Mexico City first which on Oct 26th. Questions, First, can one get married on the Tourist VIsa, however, does the clock start over regarding the 30 60 day rule when she returns from Mexico to revisit the U.S. I understand that one can get married on the Tourist Visa, however, I believe one must prove that was not the intent. If we were married before she left for Mexico, would we have a better chance of obtaining the necessary waivers for a spousal visa or because she left for Mexico we would have to apply for a spousal visa. OR would she need to cancel her mexico trip however, there would be no guarantee that while on a tourist visa she had a change in status would be approved. Sorry for the complexity.
Submitted: 1 month ago.
Category: Immigration Law
Expert:  Ely replied 1 month ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

First, can one get married on the Tourist VIsa, however, does the clock start over regarding the 30 60 day rule when she returns from Mexico to revisit the U.S. I understand that one can get married on the Tourist Visa, however, I believe one must prove that was not the intent

Yes, it is fine to get married on a tourist visa. The clerk is more interested in proof if identity than the immigration status, which they do not even inquire about.

Normally, USCIS looks the other way provided that the B2 alien entered the USA legally, even if dual intent is in place. If the marriage takes place after they have been here 60 days (or 90 if possible), then the PRESUMPTION of dual intent is no longer automatic. See HERE. However, the parties want to state that they did NOT INTENT to be married until then and there, that this was a last second thing. This is because she cannot have had dual intent (to circumvent the fiance visa process) with a B2. Assuming USCIS believes her (and normally if this is done past 60 or 90 days, they so), then this should not be an issue and she can adjust to a greencard based on marriage by filing the I-130/I-485 package after marriage without even the need to go back to China.

If we were married before she left for Mexico, would we have a better chance of obtaining the necessary waivers for a spousal visa or because she left for Mexico we would have to apply for a spousal visa. OR would she need to cancel her mexico trip however, there would be no guarantee that while on a tourist visa she had a change in status would be approved.

You are making this too complicated. She is on a B2, correct? If she gets married in USA after being here for 60/90 days, then she can adjust from USA to a greencard. But if she goes abroad after marriage, she will have to adjust from abroad with an I-130. OR if she files the I-130/I-485 while here but goes abroad while the paperwork is in process, the paperwork will be voided and she'll have to start over abroad.

If you marry abroad, then you'd have to petition for her while she is abroad, and she'd need to interview at the US Consulate/Embassy in China.

The standard waiting time is about 6 months from start to finish whether she does this from WITHIN USA, or, from abroad.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Expert:  Ely replied 1 month ago.
Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never responded or replied positively. I am simply touching base. Let me know. Thanks!