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Can I Enter On A Visitor’s Visa (B-2) And Then Adjust Status To Permanent Resident?

Can I enter on a visitor’s visa (B-2) and then adjust status to permanent resident?

Several time per week I get a question that comes something like this:

I’m a U.S. citizen and my wife is from China [or insert any other country. She has a visitor’s visa and is planning to come to the U.S. later this month. Will we be able to adjust status so she can get a green card?

Or here is another familiar version:

My husband lives in the United Kingdom [Japan, Australia, Germany… pick any Visa Waiver Program country] and has registered for ESTA. I’m a U.S. citizen. Is he allowed to come to the U.S. on ESTA and then adjust status to permanent resident?

The answer is no! No, no, no, no. Let’s look carefully at what’s going on here.

Tourists visas and ESTA are for temporary travel.

Visa categories in the United States are always tied to a particular purpose. It should be no surprise that the purpose for tourist visas is… well, you can guess. When you apply for a tourist visa or ESTA you are telling the United States government: “I would like to travel to the United States for a short period of time as a visitor, after which I promise to go back to my country of origin.” If you have ever gone for a visa interview then there is a good chance you were asked a question about the purpose of your trip. What would happen if you interviewed for a tourist visa and told the consular officer: “I’m applying for this visa so I can move to the U.S. and work!” Application denied.

Now, let’s say you’ve been issued your tourist visa (B-2) or have registered for ESTA. You hop on an airplane and arrive at a U.S. port of entry (i.e., the airport). There, you will be greeted by a friendly representative of the U.S. Customs and Border Patrol (CBP). What is the very first question that the CBP officer is going to ask you? Nine times out of ten it is, “what is the purpose of your trip to the United States?” Your answer to that question matters. And it had better be consistent with the authorized purpose allowed for your visa category. Again, for a B-2 or ESTA that’s a temporary trip for pleasure to the U.S. If you’re answer to the CBP officer is inconsistent with your visa authorization then you’re not getting past the port of entry. We’ll talk below about what will actually happen.

The concept of immigrant intent

There is one crucial question that the consular officer and the CBP official will be asking themselves: “does this person have immigrant intent?” Immigrant intent is the subjective intention to remain permanently in the U.S. That is, these officials are asking themselves whether you are secretly planning to become a permanent resident.

If you want the statutory citation here it is: Immigration and Nationality Act Section 214(b). It states:

Every alien (other than a nonimmigrant described in subparagraph (H)(i) or (L) of Section 101(a)(15)) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15).

Note that the statute says “shall be presumed to be an immigrant.” This means that the foreign national has to convince the consular officer, and the CBP official, that she doesn’t intend to become a resident of the United States.

So let’s go back to the hypothetical individuals discussed at the top of this post. The Chinese wife plans to enter the U.S. on a B-2 visa and then become a resident. That means she will have to conceal that intention (and probably lie) two times: first when she applies for the visa, and then again at the port of entry to the CBP officer. When the CBP officer asks her for the purpose of her trip, what can she say? The real purpose is that she wants to stay in the United States to live with her husband. But if she admits that to the officer then she clearly has immigrant intent and can’t be let into the country.

Same problem with the husband from the United Kingdom. Unlike the Chinese wife he doesn’t have to talk to a consular officer, since he just applies for ESTA online. But like the Chinese wife, he will be questioned at the U.S. port of entry. If he discloses the purpose of his trip then he won’t be allowed into the country. Which brings us to…

What happens if the border official decides you have immigrant intent?

Assume that the husband from the United Kingdom is interviewed by the CBP official and the official finds out that the husband has a U.S. citizen spouse. The official now has a basis for suspecting that the husband is planning to move to the United States, since married couples tend to live together. If the official determines that the husband has immigrant intent then that is usually the end of the road. There is no right to an attorney at a U.S. port of entry. That means that even if you are currently represented by a U.S.-licensed attorney, CBP does not need to communicate with that attorney. Sometimes they will, but they’re under no obligation. In reality, once the immigrant intent finding has been made it will stick.

Now what? If the husband is lucky he will simply be put on the next flight back to London. He will placed in a holding cell until the flight is available. Depending on the circumstances he may be relocated to an off-site detention facility to wait for a flight to be available. Once he is returned to the United Kingdom he will probably not be able to use ESTA to travel, potentially for the rest of his life. ESTA is a trusted traveler program, so his rule-violation means that he may not be able to register again.

What if he is unlucky? I spoke to a CBP official about these scenarios at a recent conference. He said that if someone like husband is completely honest, and simply didn’t understand the rules, then he will likely just be sent back. But if the CBP officials think that the husband has been lying the situation is completely different. In that case CBP can place the husband into expedited removal (read: deportation) proceedings. The husband is then subject to a deportation order and barred from the U.S. for three years. The same can be done to the Chinese wife, entering on a B-2, if CBP thinks that she is lying.

So if husband is determined to have immigrant intent, in the very best scenario he will be sent home and will have a difficult time traveling to the U.S. as a visitor again. On the worse case the husband will be deported and subject to a three-year ban.

But let’s say that the individual gets in to the U.S. on B-2 or ESTA – can she now file for adjustment of status. No!

Even if the person gets into the U.S. they still cannot adjust status to permanent resident.

Let’s say our Chinese wife gets into the United States on her B-2 visitor’s visa. Remember that all along she was planning to apply for residency, so after entry her husband files and I-130 Petition for Alien Relative and she files an I-485 Application to Adjust Status to Permanent Resident. She’s already in the country, and their marriage is legitimate, so is she home free? No.

An I-485 application for permanent residency is considered an application for admission to the U.S. This is a counter-intuitive concept that many struggle with. Even though the applicant is already in the country, U.S. Citizenship and Immigration Services (USCIS) treats the person as though they are outside the U.S. and seeking entry. Why does that matter? Because the person is screened for all grounds of inadmissibility.

What are the grounds of inadmissibility? The immigration statute has a long list of rules about whether a person is admissible to the U.S. A person is considered inadmissible if she has certain diseases, has committed certain crimes, is a security threat, etc. But a person is also inadmissible if she has committed immigration fraud. Under INA 212(a)(6)(C)(i):

Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

This says that if you used “fraud” or “willfully misrepresented a material fact” to secure entry into the U.S., then you are considered inadmissible.

So let’s go back to the port of entry. Remember that CBP official’s job was to ensure that the purpose of the person’s trip was consistent with their visa category, and that the person was not intending to reside in the United States. And to make it past the port of entry, the foreign national had to convince the CBP official that she planned to return home. Now that our Chinese wife is applying for adjustment of status, the USCIS officer gets to look back and ask, “was that person honest when she entered the U.S. on a B-2, or did she secretly plan to seek residency?” Remember that the USCIS adjudicator is asking this question while a residency application is sitting in front of her.

The question of fraud/misrepresentation is a factual one. That means the USCIS adjudicator can look at all of the facts and evidence available to her in determining whether the individual made a misrepresentation. She can base her finding on nothing more than her interview with the foreign national, and her impressions from that interview.

If USCIS denies the adjustment application the foreign national has to depart the U.S. or can otherwise be deported. But the problems do not end there.

Fraud/misrepresentation creates a permanent bar.

Our Chinese wife has had her adjustment of status application denied, but her troubles do not end there. Look again at the statutory language above. It asks whether an individual “seeks to procure (or has sought to procure or has procured)” a benefit through misrepresentation. That is, has the person ever engaged in that conduct. Once the person has done so, the ground of inadmissibility permanently applies to her. Let me repeat that: fraud/misrepresentation makes the person permanently inadmissible to the United States.

There is a “waiver” available for someone who has been found inadmissible on the basis of fraud/misrepresentation. A waiver is essentially asking for a type of pardon. To win a waiver for fraud the person will have to show that it causes “extreme hardship” to her U.S. citizen spouse (or parent) if she is barred from the U.S. But almost no one should count on winning a waiver case – in other words, this definitely should not be viewed as simply a Plan B. To win a waiver a person needs very strong facts, such as a spouse who is medically dependent on the foreign national. An “average” couple will not receive a waiver.

But wait!…

When I explain the problem of immigrant intent and adjustment of status there are several objections I hear often. Let’s look at some.

(1) My friend said…

Your friend told you that it was fine to enter the U.S. on a visitor’s visa or ESTA and then file for adjustment. A couple questions for you. Do you turn to your friend for medical advise? If not, why would you take her legal advice? Secondly, when you’re denied entry and sitting in a detention facility at the airport, is your friend going to be there to help you out? I don’t mean to be negative here, but seriously – unless your friend has studied immigration law you are making a major gamble taking her advice. For perspective, most lawyers won’t advise clients on immigration issues unless it is the only area in which they practice. It is a highly specialized field, and so it really seems a bit silly to take the advice of someone who doesn’t study the topic.

(2) The Department of State/USCIS told me…

I wish I had a dime for every time I heard about USCIS giving terrible, life-destroying legal advice. As you may have found out, USCIS has a national customer service 1-800 number, and sometimes you can get through to an agent who will offer her thoughts about immigration law in the U.S. The problem is that they have zero –zero – personal accountability to you for the advice they give. Similar to your friend’s advice, how is it going to work if you are denied entry at the airport. Sure, you can say, “but the customer service person told me XYZ!” First of all, CBP is a completely different federal agency from USCIS. Likewise, both are separate from the Department of State. They are governed by different regulations, and they – frankly – don’t care what you were told by a different agency. Moreover, it doesn’t really matter for their purposes if some other federal employee gave you lousy advice. If you get pulled over for speeding, you can’t just tell the officer, “but another police officer told me the speed limit was 45!” Too bad, the speed limit is 25 and you’re getting a ticket. The law is the law, and like it or not, the government agencies don’t take responsibility for explaining it to you.

(3) But my friend did it!

You’ve talked to your friends, and a couple of them did exactly what you’re hoping to do – so it’s okay… right? First, were they really in the same situation? Or maybe the facts were slightly different in a way neither of you understand. Maybe the law was different. Maybe they don’t even quite understand what legal channel they went through.

Second, and more importantly – okay, maybe your friend got away with breaking the law, so what? I have a friend who used to steal fried chicken every time he went to the grocery store. He would order some chicken strips, then eat them while he shopped. Never got caught. Does this mean I should do the same? Maybe I get away with it, too. Or maybe I get caught. Either way I’m breaking the law.

If I can’t adjust status, what should I do?

Do not panic. Just because you can’t seek adjustment of status does not mean there is no route to becoming a U.S. resident. You just need a different strategy. For both spouses and fiancé(e)s of U.S. citizens there is a process for seeking a visa while outside the U.S. You can learn more about those processes here. The downside of this tends to be that the couple will be separated for some months if the U.S. citizen needs to relocate to the U.S. But look at the big picture here. If you truly care about being united with your spouse in the U.S., pursue the correct strategy that is the appropriate route to making that a reality. If you pursue the adjustment route because it looks a bit quicker and easier, you risk destroying your chances to live together in the United States.

Wait, but doesn’t your law firm do ESTA/B-2 adjustments?

Yes, we represent B-2 and ESTA clients in adjustment cases all the time. But in all our cases one thing has to always be true: the foreign national did not make the decision to seek residency until after she came to the United States. If we think the person entered with preformed immigrant intent we will not take the case, period. What do these scenarios look like? Here are some examples:

  1. Canadian girlfriend enters the U.S. to see her U.S. citizen boyfriend. She had no idea he was going to propose, but he pops the question. Then they come to us to look at their options. Since she had never considered residency until after he proposed, there is no preformed intent.
  2. A young man comes from Ireland to go skateboarding with his friends. He meets a U.S. citizen, they fall  in love and get engaged. They had never even met before his arrival, and he entered with plans for only a short trip, so there is no preformed intent.
  3. An Australian businessman has been dating a U.S. citizen flight attendant. They’ve traveled extensively and during a trip to the U.S. decide they do want to get marred and so they come to our law firm. Since there were no plans to pursue residency at the time he entered the U.S., the client is eligible to move forward with adjustment.

Bottom line: do the right thing for the long term

Most of our clients value their family more than anything in the world. If you do as well, make sure you’re doing the immigration process right. Don’t go after adjustment just because it seems like it will be easy. Take the time to understand the proper strategy for securing your goal. If you would like an individualized consultation (schedule here) we are happy to meet with you; we work remotely with clients all over the world.

Photo credit: satit_srihin.

Can I enter on a visitor’s visa (B-2) and then adjust status to permanent resident?
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Greg McLawsen

I’m proud to be the founder of Sound Immigration. My job is to work behind the scenes to ensure our clients have an outstanding experience at our firm. I’m passionate about reinventing the practice of law to make it work better for those we serve. I work hard to identify the best available technology to make our firm convenient for clients. I look to other industries, like real estate and the restaurant business, to learn about practice that will help serve our clients better.

This Post Has 28 Comments
  1. My husband and I are both US citizen. My husband would like to apply for adjustment of status for his parents who are currently visiting US. How long would it take for them to get their permanent residency? My father in law is 85 years old and he could only purchase travel health insurance with very little coverage due to his age. We could only purchase health insurance when he has his permanent residency. We are worry any health issues arise when he is waiting for the status of adjustment. My mother in law is younger and still very healthy so we are not too worry about her health insurance coverage.

    1. Hi, Celest. Adjustments are currently taking at least 12 months. Since you mention purchasing travel insurance, it sounds like you parents must be outside the U.S. In this case adjustment is probably not a good idea – and consular processing should be pursued – for the reasons described in this post.

  2. Thank you for the info.
    My stepchildren (12y.o. &16yo) are coming for a visit in summer from Ukraine on B-2. There is a possibility that we might have them stay permanently if their mother in Ukraine consents. Will we have trouble applying for change of status while the kids are here? Thank you!

  3. I travelled to the States with my wife from Australia at the end of March last year on an ESTA and then filed a I-485 in the middle of May. We had called USCIS 5 times prior to making the move and all of the people we spoke to said traveling to the states on an ESTA and then adjusting status was ok. We even hired a lawyer who said we could go about it this way..

    The first alarm bell should have gone off when I wasn’t allowed to board the plane without a return ticket, but we trusted the advice of USCIS – which after reading your article, seems like it was the wrong thing to do. Even the USCIS website isn’t clear about this process. We ended up buying a return ticket so I could go with my wife to the States and then hired a lawyer to help us out with the process (which now seemed more confusing).
    I received my Work authorization (EAD) in September last year which was a good sign that we were going about it the right way and have since started working with a Missions organization here in the States.

    I am now concerned after reading this article and wanted some advice on what to do next. It is frustrating that we have been lead astray by the advice of USCIS and even our lawyer. I have been waiting for my interview to be scheduled since August last year and I am now concerned that ‘immigration intent’ will bar me from the states when I finally have an interview. What should we do? Should we go through with the process and plead our case? I would rather have to go back to Australia and restart the process if I will likely be barred from the States if we continue. Please help, thank you

    1. Hi, Mitch. It is extremely frustrating to hear stories like this. The 1-800 customer service line at USCIS routinely gives the advice that you’ve been given. We have asked them to correct that through our liaison with the American Immigration Lawyers Association, but clearly the issue persists. Your lawyer should also be aware of this issue. Even if the lawyer disagrees about our analysis, at the very least he/she should describe the potential legal issue to you.

      Historically USCIS has been generous with granting ESTA –> adjustment. But that doesn’t mean that there isn’t an issue here. We would recommend starting by raising this issue clearly with your lawyer and asking for his/her analysis. If you do not feel confident in the response then you could seek a second opinion. As described in this post, the intent issue is very fact specific. So maybe your lawyer has good reason to feel that you are safe to proceed.

  4. Thank you for providing a clear, simple and concise explanation – we were considering this option, but now realize it’s off the table. One issue is not quite clear – if we already filed the paperwork for green cards for our parents, and the application is going through the processing stage now, is it lawful for the parents to come for a temporary visit, but return home for any interviews and medical exams that are required before the green card approval is granted? Or do they need to remain outside the country until their application is approved?

  5. Hello!
    I was wondering, my Egyptian fiancé (we just got engaged this month, have been together for almost 2 years, and are getting married this upcoming July 2018) wants to visit the US in March (I am a US citizen thru naturalization). He’s had a B1/B2 visa since 2015 before we even met and has visited me in the US once before last year. Would he be able to come the US in March and do a legal marriage certificate and adjust his status if he’s planning on leaving the country and coming back to Egypt a few weeks later? Our wedding is in July so he’ll come back and stay till the wedding and wait to go back when his file have been approved. Or maybe around September after the wedding. Would this be considered visa fraud? We’re not sure since we want to just speed up his process without committing fraud and barring future entry

    1. Entering the U.S. with the plan to file for adjustment of status almost always runs afoul of the immigrant intent rules. There is almost no scenario in which we would advise a client to enter the U.S. on a B-2 with the goal of filing for adjustment. In virtually all such scenarios the appropriate path is to go the consular processing route.

      Also read our post here about travel to the U.S. with a pending I-130.

  6. I am an US citizen looking to file petition I-130 on behalf of my husband and daughter under K3 and K4 visa status. My 3 year old girl visited me for the holidays but will be going back to her dad in March. I understand the long waiting process and want to file their petitions NOW. Is it possible that I file their petitions now regardless of my girl being here? As she will definitely be present for their appointment in the US embassy abroad. Just want my family here already. (sigh) . Looking forward for your reply.

    1. Hi, Vea. Yes, it’s fine to file an I-130 for someone while they are visiting the U.S. She will need to return before the end of her authorized stay, but it’s fine to file the I-130 while she is here.

  7. Hi, l have b/2 visa taken from turkey for 10 years in 2012 so every year l came to visit my cousen for 15 days.. last year l met a American women and started to talk on Facebook and in 2017 we got married in my last visit with my b/2 visa. after 58 days later we applied for adjustment of status and EAD… so am l now visa froud? won’t l be able adjust status? thank you..

    1. Take a look at this post. At the vary least you will need to be prepared to present evidence that you didn’t misuse the B-2 visa for the purpose of seeking adjustment. The timing of the marriage doesn’t help, but that’s just one factor that USCIS can consider.

  8. Hello, my husband who is a citizen over 21 is trying to file for residency for his mother who holds a tourist visa. We want to adjust her status but I was told by a rep from the USCIC that she would have to make another lawful entry into the U.S and be present while we file. Is this true to your knowledge ?

    1. Yikes, no! If someone re-enters the U.S. on a B-2 with the intention to adjust status they are committing fraud and can be subjected to a lifetime ban. If she is currently outside the U.S. you will almost certainly have to do this as a consular case.

  9. Hello,

    Great info!

    Quick question. My grandmother, a Greek citizen, whom resides in Greece is seeking to come to the United States so my mother can look after her. She used to have a United States green card, which expired about 4 years ago in 2013. She came back to Greece and hasnt made the trip back to the US since 2011. Now in her elderly age, 90 years old, she’d like the ability to come stay with her daughter, a United States citizen, for 9 months out of the year and only periodically traveling back to Greece during the summers.

    What options are there to do it properly?

    Also, is there a way for her to get a visitors visa and then start a process for another visa while in the U.S.?


    1. Hi, John. As a Greek citizen she may attempt to travel to the U.S. under the ESTA program. But she will have the burden of showing the immigration agency at the port of entry that she plans to return to Greece (read about “immigrant intent” here). Assuming she is able to travel to the U.S., yes, a U.S. citizen family member could start the I-130 petition process during her stay. But she would need to return to Greece before her authorized stay expired and in order to complete the visa process there. The visa process will be relatively complex, as the family will need to be prepared to show how they will provide for her health care after she relocates.

  10. well, i am an indian girl and was married to an austrlian PR boy this year february 2017 and after that i lodged my file in embassy and suddenly i got an email that your file is withdrawn by your husband.He also demand divorce. How it could be possible for me to go australia because i dont want to give him divorce hereby. he is an australian citizen so he said he dont have anything in india. but he prevents me to go Australia. please help me.
    i am in big trouble.
    Your comments are appreciated.

  11. This information really was beneficial for me and my wife. She is Dominican, I am a US Born citizen and we have been married for 18 years and I have been living here in the Dominican doing missionary work. She has a 10-year tourist visa and we have traveled a few times to the US. We didn’t have intentions of living in the US because we love the work we are doing helping people here in the Dominican. But my dad was diagnosed with PD and both my parents are up in years. So I figured as an only child I should start thinking about moving back home and helping them. My affidavit probably isn’t enough to cut it (under the poverty line I’m sure) and being seperated is not an option. Do you have any suggestions? (please help)

    1. Sorry for the late response Ken. Very sorry, Ken, to hear about your father.

      This could be pretty rocky. If you guys are even considering being in-country for more than a few months, you might want to consider just rolling with a residency application. That’s time-consuming and somewhat costly, but that’s the appropriate mechanism if this will be more than a very temporary trip.

      If this is going to be for just a few months, however, it could be worth rolling the dice on a B-2 entry. Ties to a foreign country don’t have to be all about money. You clearly have a deeply committed, ongoing relationship to your (mutual) work in DR. That’s certainly a very colorable case to make at your port of entry. Get documentation about contracts that you’re under, rental agreements, some letters from the orgs you work with. It certainly doesn’t hurt that you’re there doing well-intentioned community work. The worst that should happen is that she might be turned around at the port of entry, and you lose the cost of a ticket (and incur a lot of frustration).

  12. My wife (foreigner) and I (US Citizen) married in May and she came with me to the States to Visit. She didn’t intend to immigrate to the USA neither when she applied for B2 Visa mid-last year nor when she entered the States this year.

    We planned to move to another country in the Middle East after marriage, but things didn’t work out due to the political situation in that country. So now we decided to stay here. I wonder if I can still adjust the status ?

    1. Hi, Adam. We would never offer someone legal advice without actually meeting with them, which we do by Skype with clients all around the world. But the situation you describe could be one of the (limited) examples where we would feel comfortable with a B-2 to adjustment strategy. It all depends on the ditty-gritty details.

  13. I’ve been coming back & forth the US and my home country since 2014. 2014, my trip was for my dad’s birthday who’s a US citizen, wasn’t with my boyfriend yet at that time (was married in the Philippines but got annulled). January 2016 was to see my boyfriend, turned fiancé because he proposed on my visit. I went home still. I came back Oct 2016 to visit him again, to discuss wedding plans and stuff. Unplanned, but we discovered December 2016 that I’m pregnant. He’s been a permanent resident (green card holder) since 2005, and filed for citizenship naturalization July 2016. We’re still waiting on his interview schedule, biometrics done.

    We planned to wait til he becomes a US citizen before we get married, but with our baby on the way, we can’t wait and want to get married already, for our child to be legitimate and for medical benefits under my fiancé as well.

    Is it okay to get married while his citizenship application is still on process, or will it create conflicts in his naturalization? Can I adjust my B1B2 visa to green card after we get married since our baby will be US-born? I don’t want to leave our child here, motherless, if I go back to my country and wait for spouse/fiancé claim to be processed before I get to be with my man and child again.

    1. Hi, Jeanne: If he is otherwise eligible to naturalize, getting married during the process does not impact the N-400. As to your adjustment eligibility, this is highly fact dependent and you need to get an individualized assessment from an attorney. This post describes the complexities of that matter, and how high the stakes are. Take the process seriously and do it right from the beginning.

  14. Thanks for the info. I’m a little confused because I came to this post after reading this post first:
    in which it states that you CAN apply for adjustment of status after entering with an ESTA waiver, if you’re a spouse. Am I missing something?

    My husband (he’s Belgian, I’m American) and I are in the process of applying for his greencard, but we’re still waiting on our USCIS number. We were hoping to move to the US while we wait and apply for adjustment once he’s approved. We both live in Belgium now with our daughter who has dual citizenship.

    Thanks for your help!

    1. Hi, Annie: I’d say what you’re missing is the details. One of the important issues that I discuss in that post (and in this one) is the issue of immigrant intent. If you make the decision to seek residency, then come to the US on ESTA, you’ve committed an act of fraud as far as immigration law is concerned. In your case it is almost certainly advisable to pursue an immigrant visa rather than the adjustment strategy. If you’d like help just let us know.

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