When filing for a spouse to become a Permanent Resident of the United States at a US Consulate abroad, can your spouse travel to visit the United States while the process is pending? This is a tricky question.
In order to successfully apply and be admitted to the United States as aB1 B2 visitor, you must show the US government that you intend to only visit the United States and then return home. This requirement is found in the Foreign Affair Manual and states as follows:
9 FAM 402.2-2(B) (U) Temporary Visitors
a. (U) Factors to be used in determining entitlement to Temporary Visitor Classification are as follows:
(1) (U) In determining whether visa applicants are entitled to temporary visitor classification, you must assess whether the applicants:
(a) (U) Have a residence in a foreign country, which they do not intend to abandon;
(b) (U) Intend to enter the United States for a period of specifically limited duration; and
(c) (U) Seek admission for the sole purpose of engaging in legitimate activities relating to business or pleasure.
(2) (U) If an applicant for a B1/B2 visa fails to meet one or more of the above criteria, you must refuse the applicant under section 214(b) of the INA. (See 9 FAM 302 for a complete discussion on Refusals Under INA 214(b)).
If application I-130 (Petition for Spouse) is also pending, you can be denied entry as a Visitor since the intent of the two visa applications are polar opposites. Therefore, it is going to be essential to be well prepared to explain the conflicting intent if asked. Depending on the CBP officer you may be pulled 'out of the line' for questioning/interview after a long flight to the United States.
The following important steps and tips should be reviewed with your immigration lawyer before you travel:
· Wait for the I-130 Petition Notice to be receipted and/or approved before travel.
· Present a copy of your I-130 approval notice; and a copy of your I-130 petition filed by your spouse which contains information that you will be processing your case outside of the United States.
· Preferably, also have a copy of the National Visa Center notice by the Department of State which shows that you intend to travel to your designated consulate abroad when it is time to interview; and to receive a decision from this post.
· Finally, purchase a round trip return ticket.
Armed with your I-130 approval notice, a copy of the petition filed with immigration, and a copy of your National Visa Center notice you now have the best chance of explaining any confusion regarding your intentions when entering the United States to visit your spouse.
Also, as a final precautionary measure, ask your immigration lawyer to provide a copy of his or her g-28 entry of appearance form to present if legal questioning becomes unexpectedly complicated. You may contact our lawyers for a free initial consultation by emailing your request to [email protected] or by calling our law offices listed conveniently at www.vasselllaw.com.
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