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I, an American, am getting married to a Brazilian girl. She is natively from Brazil and lives there currently. We are getting married in the Spring of 2021 inside of the United States.

Right now, she already has a tourist Visa that doesn't expire until 2022. Can she go ahead and use that to get to the states and marry or do we need to file for the K1 visa?

Once we are married, we will file for the green card. This question is specifically about whether we need to get a K1 visa in order for us to get married.

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According to 9 FAM 402.2-4(B)(1),

An alien proceeding to the United States to marry a U.S. citizen petitioner within 90 days of admission is classifiable as a K-1 nonimmigrant under INA 101(a)(15)(K). (See 22 CFR 41.81.) The fiancé(e) of a U.S. citizen or lawful permanent resident (LPR) may, however, be classified as a B-2 visitor if you are satisfied that the fiancé(e) intends to return to a residence abroad soon after the marriage.

Practically speaking, this means that it is fine for your fiancée to come to the US to marry you using her B visa in the spring of 2021, but if the intent is that after the marriage she should remain in the US to live with you permanently, rather than returning to Brazil, then you should apply for a K visa. Indeed, if she were to apply for a B visa at this time and explained to the consular officer that her plan was to use the B visa to marry you and stay in the US permanently without returning to Brazil first, then her visa application would be denied and she would be told that the K visa is appropriate for such activities.

The "above board" options are thus two-fold: that she come to the US on her B visa to marry you, departs, and then applies for an immigrant visa; or, that she apply for a K visa, comes to the US, marries you within 90 days, and then applies for Adjustment of Status. Between these two options, the latter is usually considered more convenient, as it avoids the need to leave the US after the marriage.

The reality is a bit more complicated since technically she can come to the US on a B visa, marry you, and apply for Adjustment of Status as there is precedent for Adjustment of Status being granted under such circumstances, but this is a more complicated topic, there are risks involved, and I don't think it's wise to rely on this unless there is some good reason why you can't apply for a K visa. See, e.g., this page and citations therein if you want to read about more details.

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She doesn't need to a K1 fiance visa "to get married" -- B2 tourist visa is fine for marrying in the US if she will leave afterwards.

However, she should not enter the US on a B2 visa with preconceived intent to file Adjustment of Status during that stay (this is true regardless of whether she is getting married). If you guys intend to file for Adjustment of Status (the process of getting a green card from within the US) after the marriage without her leaving, then she should get a K1 fiance visa instead.

  • What would happen if she never left on her tourist visa and we filed for the green card? Would she get deported? – Pythogen Nov 7 at 5:45
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    @Pythogen: First, if they suspect she will do that, they will not let her in to the US. If they do let her in, although legally she is eligible to file for Adjustment of Status, there might be the issue of whether she committed fraud or material misrepresentation when she entered the US, if she represented to the officer that she is staying briefly and then leaving, and she actually didn't intend to do that at the time. – user102008 Nov 7 at 16:26
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    @Pythogen: But she also could have intended to leave and changed her mind to stay while in the US. Intention is something that is hard to determine and there are no clear answers on this. In practice, many spouses and parents of US citizens have entered on B2 and then applied for Adjustment of Status with no problems, though in many of those cases, the Adjustment of Status was applied many months after entry, and it is unclear whether they had preconceived intent to adjust status at the time they entered. – user102008 Nov 7 at 16:29

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