In recent days, immigration attorneys across the United States have reported a deeply troubling development affecting couples who are applying for marriage-based green cards (adjustment of status) within the U.S.

Multiple cases have emerged in which foreign spouses of U.S. citizens were detained by ICE during their green card interviews at USCIS offices, including in San Diego, Los Angeles, New York, and other locations. These individuals generally:

• Entered the U.S. legally (for example, on ESTA, a tourist visa, or a student visa)
• Later overstayed their authorized stay
• Have no criminal history NBC 7 San Diego+2ABC 10 News San Diego KGTV+2

News outlets have begun covering these cases, where applicants were taken into custody directly from the interview room or immediately after the interview concluded. NBC 7 San Diego+2Newsweek+2

1. The Law Has Not Formally Changed

Under U.S. immigration law, an overstay is not, by itself, a bar to adjustment of status for spouses of U.S. citizens. Historically, USCIS has routinely adjudicated these cases, and many couples in good-faith marriages have successfully obtained green cards despite prior overstays.

However, recent events show a change in enforcement practice, not in the written law. USCIS and ICE appear to be coordinating more closely, and ICE is using its long-standing authority to detain people who are out of status—even when they are attending a marriage-based green card interview. NBC 7 San Diego+1

2. Lack of Clear Policy or Advance Warning

These detentions are occurring without any formal, public policy announcement by USCIS or DHS. There is no official guidance explaining:

• Which applicants may be targeted
• Under what circumstances ICE will appear at an interview
• Whether particular risk factors (length of overstay, prior entries, etc.) are being used

This lack of transparency makes it extremely difficult for attorneys and applicants to assess risk in advance or to predict outcomes.

3. Increased Scrutiny of Intent at Entry

Attorneys nationwide are also reporting that USCIS officers are probing more aggressively into the applicant’s intent at the time of entry, especially for those who entered on ESTA or tourist visas and later applied for adjustment of status.

Officers may ask questions such as:

• What was your plan when you first entered the U.S.?
• Did you already intend to stay and apply for a green card?
• When did you decide to get married and remain in the U.S.?

If an officer believes the person entered as a “visitor” while secretly intending to remain and adjust status, this can lead to a finding of misrepresentation or fraud, which is far more serious than an overstay and can result in a lifetime bar from the United States unless a very difficult waiver is approved.

4. The 60-Day and 90-Day “Rules” (Historical Guidelines)

In the past, the U.S. Department of State used informal “60-day” and later “90-day” rules as guidelines (not binding law) to evaluate whether someone misrepresented their intent when entering the U.S. on a non-immigrant visa:

• 60-day rule (older guidance): If a person married and applied for a green card or took other “inconsistent” actions within 60 days of entry, officers could infer that they intended to immigrate when they entered.
• 90-day rule (later version): Conduct occurring more than 90 days after entry was less likely to be treated as misrepresentation, though officers could still look at the totality of circumstances.

These rules have never been codified in the immigration statute, and USCIS officers are not required to follow them. Nevertheless, many officers still rely on similar reasoning when questioning applicants today.

A fraud finding based on misrepresentation at entry is extremely serious and can, again, lead to a lifetime bar unless a very demanding waiver is granted.

5. Consular Processing vs. Adjustment of Status: A Difficult Choice

These developments place many couples in a difficult position, especially where the foreign spouse has overstayed.

Broadly, there are two main paths:

1. Adjustment of Status in the U.S.

• Historically seen as the safer, more predictable path for spouses of U.S. citizens with overstays.
• Now carries an increased risk of detention for those who are out of status, even with no criminal history. NBC 7 San Diego+1

1. Consular Processing Abroad

This alternative involves:

• Completing the final stage of the green card process at a U.S. consulate abroad instead of at a USCIS office inside the United States.
• However, for applicants who have overstayed, leaving the U.S. can trigger unlawful presence bars:
  • More than 180 days but less than 1 year of unlawful presence → 3-year bar
  • 1 year or more of unlawful presence → 10-year bar

In some situations, a waiver is available, but it is not automatic and requires proving “extreme hardship” to a qualifying relative.

As a result, neither path is risk-free. Couples must carefully weigh the risks and benefits of each option in light of these new enforcement practices.

6. What This Means for Our Clients

We are sharing this information not to alarm you, but to ensure you are fully informed as these developments may affect many good-faith couples nationwide.

Key points to keep in mind:

• The written law on marriage-based adjustment has not fundamentally changed.
• Enforcement practices have changed, and ICE is now making arrests in situations that were previously considered low-risk. NBC 7 San Diego+2ABC 10 News San Diego KGTV+2
• Overstay alone may now lead to detention at or around a USCIS interview in certain cases.
• Findings of misrepresentation or fraud are extremely serious and can carry lifetime consequences.
• Every case is unique, and individualized legal advice is essential.

7. Next Steps: Talk to Your Attorney Before Your Interview

If you:

• Have any period of overstay or gaps in status
• Entered the U.S. on ESTA or a tourist visa and later decided to marry and apply for a green card
• Are concerned about previous visa entries, work authorization, or prior applications

you should speak with an experienced immigration attorney before attending any USCIS interview.

At Fuessel Law, we are closely monitoring these developments and will continue to update our clients as new information becomes available. If you have an upcoming marriage-based green card interview or are considering filing for adjustment of status, we strongly recommend scheduling a consultation to review your individual risk and strategy.