I am a United States citizen and I have been living in New Zealand with my boyfriend for the past seven months. We have decided to return to the United States and eventually get married. We would like to have time to get the money together for a nice wedding, but there seems to be a lot of pressure on us to get married within a set amount of time, according to the immigration laws. My boyfriend has a visitor visa with three months until its expiry, so he can get into the United States in this way. Should we just wait until we are married, even if it is longer than his visa allows him to stay, and then apply for a spouse's visa? Or should we apply as soon as we get into the country together?

He could probably first enter as a visitor, subsequently marry and then file for adjustment of status (as long as he did not make any material misrepresentations along the way) since he would be seeking permanent residence as the immediate relative of a U.S. citizen. The regulations offer greater latitude in such cases. However, I strongly recommend that your boyfriend avoid falling out of status while in the United States.

You indicated that your boyfriend had a "visa" but your statement that he had only three months suggests that he might be entering under the Visa Waiver Pilot Program. New Zealand is one of the countries eligible under this program. If he enters under this pilot program, he is not permitted to extend his period of stay or adjust his status to permanent resident under INA §245(a).

However, adjustment of status under INA §245(i) is still possible if he pays a penalty fee (which increases to $1,000.00USD as a result of IIRAIRA). Although an alien who is the immediate relative of a U.S. citizen will be exempt from paying the penalty fee, INA §245(i) will only be available until October 1, 1997. Aliens seeking adjustment under this provision must obtain their permanent residence before that date. With adjustment of status currently taking up to 10 months to complete, seeking adjustment under INA §245(i) might be a little risky.

If your boyfriend enters with an actual visitor visa (instead of under the Visa Waiver Pilot Program) and continues to maintain lawful status, he should be able to adjust status normally under INA §245(a). However, if he falls out of status, complications may arise.

INA §245(c) states that a person who fails to maintain lawful status since entry into the United States is statutorily ineligible for adjustment of status under INA §245(a). However, an exception exists for immediate relatives of U.S. citizens. Therefore, your spouse would not be statutorily ineligible for adjustment of status under INA §245(a).

Even if your spouse is not statutorily ineligible, adjustment of status is still discretionary. Simply meeting the requirements of eligibility does not assure approval. Adjustment can still be denied where negative factors are present. Negative factors must be considered and balance with other factors in determining whether favorable discretion will be exercised.

The fact that he will be a spouse of a U.S. citizen is a positive factor which will likely overcome the negative factors associated with his preconceived intent to remain permanently at the time he applies for a visitor visa. However, it may not overcome the additional negative factors associated with failing to continuously maintain status. If adjustment of status is denied, your spouse may have to return to his home country and wait there until he can get an immigrant visa.

My most serious concern relates to certain provisions contained in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA"). IIRAIRA contains new grounds of exclusion for unlawful presence. If your boyfriend is unlawfully present in the United States for more than 180 days but less than one year, he is barred from the United States for three years. If he is unlawfully present in the United States for more than one year, he is barred for ten years. If your boyfriend becomes excludable as a result of his unlawful presence, he will have to obtain a waiver of the ground of exclusion before he can be granted an immigrant visa.

I can suggest two options:

1. You can petition your boyfriend as a fiance. Once his petition is approved, he will obtain a fiance visa at a U.S. consulate abroad. Once he enters the United States as a fiance he will have 90 days to marry you. Once you are married, he can apply for adjustment of status to permanent residence under INA §245(a).

2. Alternatively, you can have your boyfriend enter the United States with a B-2 visitor visa (instead of under the Visa Waiver Pilot Program) and try to extend his visitor status until you are ready to get married. Be careful not to make any material misrepresentations. Once you are married, you can petition him for permanent residence as a spouse and apply for adjustment of status under INA §245(a). Even if the INS believes that your spouse had preconceived intent when he applied for entry as a visitor, the INS should still permit adjustment of status since he will be an immediate relative of a U.S. citizen.