Adjust status or consular process?

Indeed our  world feels  smaller.  The norm is ‘global’; be it in business or  love.  Travel abroad has become a ‘must’ for businessmen in order to keep up and promote international trade growth.  With the advent of the Internet, prevalence of social media, long distance love affairs are a breeze.   One client talks with his fiancée on Skype everyday and it is just like living together, being privy to each other’s daily affairs.  Progress in third world countries has given rise to entrepreneurial growth.  Successful small business owners can easily convince consular officers of their need to travel to the United States to market products or learn new strategies.  In the course of the visits to  the U.S., love meets destiny but might cause an  immigration  problem..

Almost 3 decades ago, for citizens  of some countries  a tourist visa (“B1B2”), is  nearly impossible to obtain.  This visa type allows one to enter the U.S. as a visitor for business and/or pleasure.  Times have changed, in the spirit of globalization and promotion of international trade, it is very likely that a budding entrepreneur can apply for and obtain a multiple entry 10 year  B1B2 visa. If a romantic relationship gets mixed up with the business, let’s consider that  ‘collateral damage’. But is it really “damage” in the real sense of the word? It depends. Not if the change of circumstances would enhance the alien’s business prospects , i.e., the alien-spouse can re-establish/extend the business in the U.S. It is a ‘damage’ if the alien has to totally give up a money-making, successful business venture,  located outside the US.  To relocate or  stay put when the U.S. citizen partner suddenly proposes marriage (and forget all about your entrepreneurial success), is a hard decision to make.  Recently,  I have had clients asking about  other options (aside from staying and later adjusting status) available if they would rather hold on to the  multiple entry tourist visas while continuing  to manage their business (or at least find time to close shop or assign management to another), without losing the love of their life or  the marital loving relationship.  Entering the U.S. on a B1B2 visa is not a permission to enter to marry.   But the foibles of human nature can lead to a marriage proposal and the  start of a life with the U.S. citizen spouse. Do you stay or do you pass?   In the meantime, the foreigner’s business responsibilities  across the globe cannot be ignored.  The decision to get married is not an immigration issue; in fact it is a right protected by the Constitution. Immigration steps in only when the marriage is not entered in good faith. The distinction whether the marriage was entered into in good faith or not is hard  to establish. If the decision is  to marry and start a life together as a couple in the U.S., then the process will be  adjustment of status. Determining the foreigner’s intent upon entry into the U.S. is crucial. Was there an Intention  to go home before the permission to stay expires?  Was a round-trip ticket purchased  before coming to the U.S.? Are there medical or criminal concerns that would prevent the foreigner from being approved for  an immigrant visa by a consular officer (at the U.S. embassy abroad) whose decision to bar a foreigner’s entry is not appealable?  If the option is to adjust status, at least both  are  in  the U.S. and whatever waiver should be filed, the married couple are physically together while the petition is being adjudicated.  Going back home before the permitted stay expires and processing the spousal visa through a U.S. embassy abroad (consular processing) can be a better practical  option.  The wait is not a long one as a spousal visa is immediately available (approx.. 9-12 months).  The wait will actually allow the alien spouse to settle business affairs in preparation for residence abroad.

Some people have  the best of both worlds, being born in a country with visa waiver status but   the realities of immigration is evolving. Hardly any place is unreachable, for now though, you have to choose wisely.

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Maria Rita Reyes-Stuby is a licensed attorney in Michigan.  She is a graduate of the University of the Philippines College of Law. She specializes in immigration and practices in Las Vegas, Michigan, California and other states.  Bernadette Bretana, a graduate of the Ateneo Law School and Ms. Stuby are licensed attorneys in the Philippines. Please call @702-403-4704 or email her at [email protected] or go to for any questions on this article.

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