The article strongly misrepresents this, and they were almost certainly not detained for over-staying, but likely for fraudulent entry. See my other comment.
Fraudulent entry can only happen on entry. If they had no intent to be married on entry, then there's no fraud on entry, and therefore it doesn't apply.
The timeline is:
1. Foreigner is married to or intends to marry a US citizen and live in the US (they know this; the government doesn't). 2. Foreigner enters the US with the assertion they have no intent to immigrate (they know this is false; US doesn't). 3. Couple applies for change of status to immigrate → This reveals the foreigner's original intent to immigrate even at the time of entry (the US now knows the entry was fraudulent)
I'm not defending the law; I believe it's haphazard and inhumane. Why do you get to apply while together inside the US only if you decided to marry and immigrate after entering the US, but if the foreigner is outside the US at the time you make the decision, you're now locked out for years? But that is what it is, and these people are getting burned trying to skirt the law.
That's not my argument. My argument is that there are cases where the intent literally changes. There was no intent to immigrate when entering, but that intent did change after entry.
> Foreigner is married to
We're talking right now about people met who their spouse after entry.
> or intends to marry a US citizen and live in the US (they know this; the government doesn't).
This requires mens rea and is next to impossible to prove without some documentation.
> 2. Foreigner enters the US with the assertion they have no intent to immigrate (they know this is false; US doesn't).
Or foreigner intends to enter with no intent to immigrate, but that intent changes after entry when they decide to get married to whoever they're dating. This intent change happens after entry.
> 3. Couple applies for change of status to immigrate → This reveals the foreigner's original intent to immigrate even at the time of entry (the US now knows the entry was fraudulent)
The mere change of status request here proves nothing about any intent at entry.
> I'm not defending the law; I believe it's haphazard and inhumane. Why do you get to apply while together inside the US only if you decided to marry and immigrate after entering the US, but if the foreigner is outside the US at the time you make the decision, you're now locked out for years? But that is what it is, and these people are getting burned trying to skirt the law.
It sounds like this is the part that you're salty about.
And it is definitely possible to have entered without an intent to marry. The day the woman I married entered the US she did not know of my existence. We met here.
If you are already married, then you enter the country with an assertion that you have no intent to immigrate, then you soon after apply to immigrate, chances you were not lying are vanishingly slim.
Yes, if you meet after you enter the country, then that doesn't apply to you. That's exactly when it is appropriate to apply from inside the country and stay while your application is pending. That's not what these couples are doing.