Dear Mrs Walker-Huntington,
Do you have to be in the United States (US) for 30 days before you are married? If your spouse decides to file so that the interview is done in Jamaica, how soon can you leave the country? Is it true that permanent residents can file for their spouse and child as of August 2013? If this is true, how does the 30-day rule apply?
The 30-day rule applies to non-immigrants who enter the US for a stated, temporary purpose and within 30 days move to make their stay permanent. It more often than not applies to persons who enter as visitors and within 30 days file to adjust their status to that of a permanent resident.
To answer your questions individually:
1. A person does not normally have to be in the States 30 days before they can be married. However, if you enter the US as a non-immigrant and marry within 30 days of arrival then file to change your status to a permanent resident, it will be presumed that you intended to do so upon your arrival. The presumption can lead to your being denied permanent residence and being placed in removal proceedings. Subsequent applications for permanent residence can be impacted by this removal.
2. If you go to the States to marry your fiancÚ and plan to return to Jamaica to process your documents, you can be married at any time after your arrival. Persons are sometimes concerned that if they live in Jamaica, have a spouse in the US and their petition for permanent residence is being processed, that they cannot visit their spouse in the US. There is no prohibition against travelling to the US if you have a pending petition for permanent residence. The immigration officer at the border has to be convinced that you are not travelling to the States with the intention of remaining. The recommendation is that whenever you are travelling, you have proof with you that you intend to return to your home country.
3. Permanent residents have always been able to file for their spouse and unmarried children. Spouses and minor children are in the F2A category, and unmarried sons and daughters over 21 years are in the F2B category. In August, 2013 the F2A category went from a priority date of October, 2011 to being current, and in October, 2013 the priority date being processed is September 8, 2013.
4. The 30-day rule does not normally apply to permanent residents because spouses of permanent residents cannot adjust their status unless they are in status, i.e., their time to stay in the US has not expired and they have an approved petition for alien relative. If however, they have an approved petition for alien relative and their time to stay has not expired and they file to adjust status, the 30-day rule will apply. This is not a recommended course of action because the chance of becoming out of status while you wait for the adjustment of status interview is high.
Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida. firstname.lastname@example.org.