Q. When must I marry and file for Adjustment of Status under the Visa Waiver Program?
A. According to Section 245(c)(4) of the Immigration Nationality Act, foreign
citizens admitted into the U.S. under the visa waiver program are not
allowed to adjust status to that of a person admitted for permanent residence.
However, there is an exception for immediate relatives of U.S. citizens,
i.e. spouse of a U.S. citizen. Thus, an individual admitted under the
Visa Waiver program who gets married to a U.S. Citizen is able to file
for adjustment of status even after the Visa Waiver Program period has
expired. (90 days).
However note that U.S. Immigration and Customs Enforcement (ICE) has authority
to order the removal of a Visa Waiver Program overstay, including an immediate
relative, under INA section 217(b) of the Immigration Nationality Act
and 8 CFR 217.4(b).
It is best to wait for 60 day to get married and then to file for Adjustment
of status before the expiration of the 90 days on the Visa Waiver Program
as if you file for Adjustment of Status after 90 days, you are at risk
of getting deported by ICE.
Q. Getting Married Abroad?
A. If you are a U.S. Citizen and would like to get married abroad to a
foreign spouse, you should be mindful of the marital requirements of other
countries. Procedures vary from country to country, and some require lengthy
preparation. Some of the requirements that you might encounter include:
- Residency requirements (some nations require you reside within the country
for a specified duration of time prior to marriage)
- Blood tests.
- Age requirements (minimum age of marriage differs from country to country)
- Parental/Guardian consent (some countries mandate a parent/guardian accept
your and your fiancé(e)’s union)
- Prior relationship documents (i.e. divorce, death certificates) translated
into the local language, and authenticated.
Affidavit of Eligibility to Marry: An affidavit may be requested in some countries to demonstrate legal capacity
and ability to enter into a marriage contract. The United States government
does not issue these affidavits. They must be executed at the U.S. Embassy
or Consulate. Affidavits notarized by a U.S. Consulate officer will generally
suffice to support your marriage status.
Q. Can I still use my maiden name on my immigration documents if I am married?
USCIS requires the use of your full legal name on all forms and USCIS issued
documents. The Adjudicator’s Field manual states in relevant part
“Any USCIS document is to be issued to the individual in his or
her full legal name.” Regulations that support using full legal
names rather than names selected due to personal preference include: 8
C.F.R. sec. 204.2, 320.3, 322.3 and 32 C.F.R. Pt. 270 App. A.
Please Note* under California Family Code Section 306.5 (b)(1) one or both parties to
a marriage MAY elect to change the middle or last names or both, by which
the party wishes to be known after solemnization of the marriage by entering
the new name in the space provided on the marriage license application
without intent to defraud.
(meaning that you have the option to change your middle and/or last name
when you apply for your marriage license in California)
HOWEVER, under California Family Code Section 306.5 (4)(A) An election
by a person to change his or her name pursuant to paragraph (1) shall
serve as a record of the name change. A certified copy of the marriage
certificate containing the new name or retaining the former name
shall constitute proof that the use of the new name or the retention of
the former name is lawful. (meaning that if you decide to change your name on your marriage license,
once your marriage is solemnized and you received your marriage certificate
your name has
Please also note that California Family Code Section 306.5 (5) states that
an adoption of a new name or the choice not to adopt a new name, by means
of a marriage license application pursuant to paragraph (1) [of this section]
shall only be made at the time the marriage license is issued.
After a marriage certificate is registered by the local registrar,
the certificate shall not be amended to add a new name or change the adopted
name pursuant to paragraph (1). An amendment may only be issued to correct a clerical error in the new
name fields on the marriage license.
The San Francisco County Clerk Application for Public Marriage License
states in relevant part that “the new middle or last name
may not be changed or added on the marriage certificate at a later date.” An amendment to the new name may only be issued to correct clerical
errors and that amendment must be signed by one of the parties to the
marriage and the county clerk or his or her deputy.
Because USCIS will only allow an applicant to use their full legal name
on USCIS issued documents, if you change your name on your marriage certificate you
MUST use that new name on all USCIS forms and documents. If you decided not
to change your name on your marriage certificate you
MUST use your maiden name on the documents.
If you have any questions regarding whether you should or should not list
your new name on your marriage license application, and/or how the Name
Equality Act of 2007 may affect you, or if you have already changed your
name in error and wish to correct it, a San Jose attorney and Verma Law
Firm would be happy to assist you. Please contact us at (408) 560-4622 to set up an appointment for a case consultation.
- USCIS Adjudicator’s Field Manual Section 51.4-Naming Conventions
- USCIS Interoffice Memorandum Regarding Naming Conventions
- California Name Equality Act of 2007
- California Family Code Section 306.5
- Marriage License Application and Instructions-San Francisco
- Marriage License Application and Instructions-Los Angeles