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May I Visit The U.S. On A B-1/B-2 (or ESTA) After Filing An I-130 Or I-129F?

May I visit the U.S. on a B-1/B-2 (or ESTA) after filing an I-130 or I-129F?

It’s just a fact – marriage and fiancé(e) visas take a long time. The process starts when the U.S. petitioner files an I-130 (marriage) or I-129F (fiancé(e)) petition. After the petition is filed, all you can do is wait for its approval. Recently, processing times have been between two and six months for the initial approval. For this reason, it’s common for the foreign national to want to visit the United States while the petition is being processed. Can this be done?

Common examples.

Here are some examples of situations that we see very often with our clients.

  • Example 1. Ted is a Canadian citizen. He works in Vancouver as a server in a restaurant and lives in a condominium that he owns. His U.S. citizen wife, Carol, has just moved back to Washington State to accept a new job. Carol is pregnant and expecting their first child in 9 months. Steve would like to travel to Washington State every week to visit Carol and attend prenatal medical appointments.
  • Example 2. Nicole is a citizen of the Philippines. Her new fiancé, Steve, lives in the United States. Nicole lives with her extended family and works in a manufacturing concern in Pago. Steve has just filed the I-129F petition to start Nicole’s fiancée case.  Steve is busy with work in the United States. May Nicole visit him while their petition is being processed?
  • Example 3. Rachel, a U.S. citizen, has been living in Germany with her husband Derek. Derek lives in a rented flat in Germany and is a technology consultant. She has just moved back to the U.S. to take a new job. They have filed the I-130 petition to get Derek’s visa case started. Derek wants to visit Rachel once every other month – traveling on the ESTA program – until their I-130 petition is approved.  

The law – overcoming the presumption of immigrant intent.

The core legal concept at work here is called “immigrant intent.” Here is the basic idea.

In U.S. immigration law, visas come in two key categories:

  1. Immigrant visas. These are visas for foreign nationals who are entitled to live and work permanently in the United States. When an individual enters the U.S. on an immigrant visa she is issued a greencard (I-551 permanent residency card) and may live and work indefinitely in the U.S.
  2. Non-immigrant visas. These visas are issued for temporary travel to the United States. The individual is required to return home and the end of her temporary period of authorized stay. Also, travel on a non-immigrant visa is limited to the specific purposes allowed for the visa type. For a B-2 visitor’s visa, travel must be related to a permissible leisure travel purpose.

When traveling on a non-immigrant visa, a foreign national always has the burden of proving a lack of “immigrant intent.” That is, she has to prove that the purpose of her travel is the one authorized for her visa type. Also, she has the burden to prove that she does not plan to remain permanently in the United States upon entering. She has the burden to show that she plans to return at the end of her authorized stay. (For more on this legal issue, see our post here).

Even after being issued a B-2 visitor’s visa, the individual is still required to prove her lack of immigrant intent when she enters the U.S. Why? Because a visa does not constitute permission to enter the United States. It is only permission to seek entry – to “apply for admission” – to the U.S. at a port of entry. (Ports of entry are any border crossing into the U.S., including at international airports).

This means that an individual must pass the immigrant intent test at the time she is trying to enter the U.S. Whether at a land crossing, or when landing at a U.S. airport, she will be inspected by a Citizenship and Border Protection officer. One of the key questions that officer will be examining is whether an individual traveling on a non-immigrant visa plans to overstay and remain in the United States.

What factors will CBP consider?

Let’s say the foreign national has arrived at the U.S. border. She has just landed at the Dallas/Ft. Worth international airport. How will the CBP officer determine whether she plans to return at the end of her temporary stay?

The official factors considered by CBP are not publicly available. Previously, the CBP’s Inspector’s Field Manual was available, but that manual is now defunct. But it is safe to assume that CBP looks at factors similar to those used by the Department of State in issuing non-immigrant visas. Those factors are:

  • Permanent employment;
  • Meaningful business or financial connections;
  • Close family ties; and
  • Ties to social or cultural associations, which show a strong incentive to return to the country of origin.

At the end of the day, the two very most important things to be able to demonstrate are living arrangement in the home country and on-going employment. So, for example, it is far better if the foreign national owns a home than if she is living with family. And the more established her occupation is, the better.

It is also important to understand that countries have very different rates of visa fraud. That is, citizens of some countries violate U.S. immigration law far more frequently than others. CBP is not oblivious to this fact. So it is safe to assume that foreign nationals coming from countries with high rates of visa fraud will face additional scrutiny at the border.

By contrast, some countries have very low rates of visa fraud. The most trusted countries are enrolled in the Visa Waiver Program (ESTA) that allows their citizens to travel to the United States without a visa. These countries include much of Europe, Australia, Japan and New Zealand. Enrollment in ESTA by definition means that a traveler is a lower risk to overstay and violate the terms of his admission.

Let’s analyze our examples.

What would be the likely outcome in the examples listed above?

  • Example 1. There is a good chance Ted would be able to travel back and forth between the U.S. without incident. He owns a residence in Vancouver and has ongoing employment there. We represent Canadian clients very frequently and it is common for the Canadian to travel many times to the U.S. while a marriage or fiancé(e) case is being processed.
  • Example 2. Nicole probably cannot successfully enter the U.S. on a visitor’s visa. The fact that Nicole lives with her family – rather than in a residence she owns – weighs against her. Also – fair or not – CBP would likely consider the fact that Nicole’s employment is less appealing than alternatives in the U.S. On top of this, the Philippines have a relatively high rate of visa violations. There is a good chance that Nicole would be denied admission.
  • Example 3. Derek would have a good chance of being admitted to the United States. The fact that he has a flat, that he continues to rent, in Germany is a positive tie. But his employment is somewhat less clear. If Derek’s work can be done remotely this does not necessarily show a tie to his home country. But the fact that Germany is enrolled in ESTA also weighs in Derek’s favor. Our firm represents many clients from ESTA countries, and it is common for individual’s in Derek’s situation to be permitted entry.

How to prepare. 

If an individual is planning to travel to the U.S. with a pending I-130/I-129F petition, how should she prepare? Remember that inspections at the port of entry are not like visa applications. This is not an opportunity to present piles of paperwork in support of your position. Interviews at the border tend to be short, and rely primarily on what the applicant says rather than paperwork. Still, there are a few items you may wish to bring with you. Here are some suggestions:

  • Never ever (ever) lie to CBP. The surest way that you can permanently hurt your chances of coming to the U.S. is to lie. If the CBP inspector believes that an applicant is lying, this can cause life-long problems. First, the individual can be placed into expedited removal proceedings and immediately returned to the home country. Worse, the lie can result in a fraud finding that carries with it a lifetime bar from the United States. Under no circumstances try to hide facts or make misrepresentations to CBP.
  • Be up-front about your petition. Assume that CBP will know that an immigrant petition has been filed for you. Never try to hide that fact. Instead, be up-front with the fact that you are in the midst of the legal immigration process – you are trying to do things the right way. Be specific with the inspector about why you are coming on this particular trip while the petition is pending. For our clients, we often prepare a short letter that describes where we are in the petition process and how we anticipate that process will be proceeding. We attach a copy of the receipt for our petition, as well as from the National Visa Center if we have progressed to that stage.
  • Proof of residence. Do you own a home, bring proof of ownership. Are you renting? Bring a (translated) copy of your lease agreement and several months of receipts showing that you are still occupying the residence.
  • Proof of employment. Bring several recent pay stubs plus a (translated) letter from your employer, stating that your position is ongoing.

Ultimately the CBP officer has authority to decide whether to admit the individual. There is no right to have an attorney at a port of entry. In fact, CBP does not even have to speak to your lawyer if they choose not to. And if the officer decides not to admit you, that decision cannot be appealed.


Travel to the U.S. with a pending I-130/I-129F can certainly be done. Our clients do it all the time. But you need the right circumstances showing ties to the home country. Most of all, you need to always be honest and forthright with CBP and any other immigration inspector.

May I visit the U.S. on a B-1/B-2 (or ESTA) after filing an I-130 or I-129F?
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Sound Immigration

All Sound Immigration attorneys are members of the American Immigration Lawyers Associations. They practice immigration law exclusively, focusing on helping families start new lives in the United States.

This Post Has 28 Comments
  1. Hi,
    Thank you for the information provided above.

    I am a Singaporean. Singapore is part of the VISA Waiver Program.
    My husband is a US Citizen. We are currently applying for the I-130.

    I believe that this process might take about 8-10 months? Please correct me if i am wrong.

    I would like in the meantime to visit my Husband a few times.
    Currently, i stay with my family (this is a cultural thing for Singaporeans). And i work in the Aviation world – I sell Airline IT Solutions.

    In your opinion, do you think I would be able to visit the US while the I-130 is processing?

    What if I quit my job around June but still intend to visit my Husband? Do you think i would be allowed in?

    1. Hi, Anishka. It’s not really possible for us to give an individualized legal opinion in this forum about whether you are or aren’t likely to be permitted in. The primary factors are discussed in this blog post. But realistically, there is also a huge amount of individualized discretion at the port of entry. That’s just a reality – unfortunately – of how this works.

  2. Hi,

    I am a US citizen and also my son. My wife got a b1/b2 10 year visa and we are in the US. She will go back to Macedonia and can I file for petition and she can travel back and forth legaly with our US citizen son to visit me while it is I 130 is pending?

    1. Well, it’s just like we describe in this post. Potentially yes, but she has the burden to show the border agent that she will be returning. There is no iron-clad way to predict how they will decide in a particular scenario.

  3. Hi

    I am a UK citizen and am intending to marry my US girlfriend in the US. We are preparing to file for a K1 visa. I am fortunate with my work that I can work remotely anywhere. At present i travel over to the US a week a month on an ESTA and tell the immigration officers at border control that i am travelling for pleasure.

    I am worried that once my girlfriend files for a fiance visa i am likely to not be allowed into the US while it is being processed.

    I own my own house and have permanent employment with my employer.

    Is it likely that i will not be allowed entry while our K1 visa is being processed? Or should it be ok and that i may have to visit less frequently?

    Any help would be great.


    1. Hi, Jo. It’s very common for our U.K.-based clients to travel frequently to the U.S. on ESTA while a K-1 is pending. It ultimately comes down to the CBP officer’s determination. But a strong history of lawful travel, employment, and home ownership in the U.K. are all strong factors. Ultimately, if you are immigrating to the U.S. you’ll have to bit the bullet and get the process started with a petition (I-129F or I-130). For temporary travel in the interim you’ll want to bring documentation of your ties and always, always, always be honest and upfront with the CBP officer about what is going on. Reducing the frequency of your visits, however, would not necessarily factor one way or another.

  4. Me and my wife got married in Malaysia, almost 1 year ago, but we have been together for about 4 years now. we did the wedding in my home country Uzbekistan. 3 month ago she filled the petition she went to us and she filled it for me. we registered our marriage in Malaysia, we did the wedding in my country. We have been living together 3 year because we were studying.
    What are our chances to get approved for cr1 visa?
    and is it possible to go as a tourist while our petition is pending. i have a job with a contact and she is doing her masters, would a be a strong ties?

    1. Hi, Farik. It’s not possible to say if you are CR-1 eligible or not given only this information. But a marriage is valid for U.S. immigration purposes if it is valid in the location where it is performed. So long as your marriage was valid in Uzbekistan it is valid for the visa process.

      In terms of travel on a B-2 while the I-130 is pending, please refer to the guidance in the post above. Good luck with the process!

  5. Hello! I recently married a Costa Rican Woman at Costa Rica, Two questions please:
    1) Before we file any paperwork, can she visit me on a tourist visa without many issues down the road?
    2) May I file a Fiancé Visa although we are already married in Costa Rica?
    Thanks! Ahead of time

    1. Hi, Edgardo – congratulations on the marriage!
      1 – That’s governed by the same considerations discussed in this post. She theoretically can, but she has the burden to show that she will return after a temporary stay. That is a more difficult showing once a U.S. citizen fiance is in the picture.
      2 – No, fiancee visas are available only prior to marriage.

  6. Hi,

    I am a US citizen and my fiancé is English. He travels here on an ESTA and he also has global entry. He owns his own company and has children in England. We want to get married in US and apply for I-130 but he will need to travel back to England every other month for business and family. Will he be able to travel back and forth without any issues? How long will it take to process his I-130?

    1. Hi, Erica. If he is outside of the United States then he will need to pursue consular processing versus adjustment of status. The U.K. would remain this place of residence and he would be traveling to the U.S. in the interim only as a visitor. That’s often relatively easy for a U.K. citizen with strong financial/business ties.

      We are advising our clients to expect approximately one year from start to finish on marriage-based visas, though processing times could continue to get worse, as they have over the past year.

  7. I am a US Citizen, and I would like to request my sibling. I understand that the request would take several years. My brother has a valid US Tourist Visa for 10 years and has visited me a few times and returned to his home country withing the time allowed.
    Would he be able to continue to visit me after we submit I-130 form? He owns a house with his wife and both have jobs in Colombia. He would like to visit me with his wife for tourist travels this year.

    I appreciate your help.

  8. I am going to be marrying my fiance in the Dominican Republic. I am a US citizen, and she is a citizen of the Dominican Republic. I plan to apply for I-130 right after our marriage.

    Questions 1: Does she have a good chance of visiting me during the waiting period?
    – She already has a B1/B2 visa which she recently renewed and expires in 2026. She has never had legal issues with traveling.
    -She has traveled to the US every year for the past 10 years and sometimes multiple times per year for many years in the past.
    -She has never been married and has no kids.
    -She lives with her mother and pays some bills (only her and her mother share a 2 bedroom apartment).
    -She is an administrator of a software company but is considering leaving her job just before we marry.
    -She has been an official member of a local church for many years and is very involved in missionary work and other activities.
    -Both her parents and most of her family lives in the Dominican Republic.

    Question 2: Would providing evidence showing that she must return to her country in order to do a missionary trip/work be good proof that she has an intent to return?

    Question 3: Is a return flight already purchased good evidence of having an intent to return?

    Question 4: Does a honeymoon in the US count as a leisure activity?

    Thanks in advance,

    1. Hi, Nathan. That’s a lot, but here’s at least a partial set of answers.

      Question 1. It’s extremely hard to predict how a CBP officer will treat a given set of facts. And a lot of it comes down to their impression of the person via their very short face-to-face interview at the Port of Entry. The facts you describe show reasonably good ties to the DR, though leaving a job is certainly a risk factor. It is also a substantial risk factor not to have a paid place of residency (owned or formally leased). Perhaps the most important advice is this: a B-2 traveler should always be scrupulously honest about what is going on in the immigration process. If the traveler is completely honest then being turned away at the port of entry should be the worst consequence. But if the CBP officer thinks that there is deception involved the person can be placed into expedited deportation and barred from the country.

      Question 2: It’s fine to bring such proof of intent to return, but note that CBP is not required to even review it. In any event, they would review it only at the Secondary Inspection phase (if there even is one), not at the initial kiosk interview.

      Question 3: You absolutely should have a return flight booked. It is necessary, but not sufficient.

      Question 4: For purpose of having a B-2 compatible activity, sure, it is considered travel for pleasure. But that does not mean that CBP cannot still have concerns about immigrant intent.

  9. Hi,
    I work for an MNC and was working in US on H1B visa for past two years. One month ago, my H1 b visa extension was denied by Uscis and I had returned to India. My husband is a green card holder, who lives in US and he applied I130 for me. I am in India working for the same MNC now. Can I apply for visitor visa, while my immigration process is still pending. What are the chances of getting it approved.

    Please help me.

  10. Hi There,
    Assuming my spouse gets approved for her Tourist visa, while preparing the I-130 petition. Is it in any way damaging for the petition traveling back and forth to USA? There is an opinion that once my spouse leaves USA.. she would need to file a new petition..

    Please advise,
    thank you!

    1. Hi, Dmitry. No, travel to and from the United States does not harm the pending petition. An individual has to overcome “immigrant intent” concerns as discussed in this blog post, but there is no damage to the petition due to travel.

  11. Hi I am 31 y/o, female, single, my mother is a permanent resident/green card holder and she filed a I-130 for me & my older sister in 2013, our petition is still on process. I currently work as a physician in government with permanent status of appointment, for the mean time I live with my sister at our family house under our mother’s name, while I’m in the process of paying the downpayment for a condominium I bought under my name. I have never travelled abroad before but want to visit/surprise my mom on her birthday on Aug. I just want to be with her before I become more busy bec I plan to pursue specialization studies here in my country Philippines. What are my chances for a B2 visa?

    1. Someone with an excellent professional career – such as a physician – has overall a good chance of securing a B-2. You should consider applying as soon as possible and be prepared to present evidence of your stable employment situation.

  12. Hello,
    Thanks for the information, it is really helpful.
    I have some questions regarding the family immigration process and I would appreciate your advise.
    My name is Roberto and I am a Mexican citicen over 21. I currently have a B1/B2 visitor’s visa. My older sister is a US citizen and she is about to start the I-130 filling process for me and my parents. I am a professional engineer and have tried to obtain a working visa in the past, but sponsorship has always been the issue.

    1. Would the immigrant petition filled on my behalf allow me the right to work in the US?
    2. Knowing that the immigration process could take several years in my case… If a company is willing to sponsor me, would I be able to apply for a working visa while the immigration process is ongoing?


    1. Hi, Roberto. Once the sibling petition process is completed and after you have received an approved immigrant visa you would be able to work in the U.S. But the petition does not give work authorization until the end of the process. A company could sponsor you for an H1B visa while the sibling process plays out, as the H1B provides for “dual intent”. This means that it is a temporary visa but allows you to simultaneously pursue residency.

  13. Hello.
    I’m a Hungarian female. my husband and I just got married 2 weeks ago , my husband is a US citizen he was born in the states. I have a B1/B2 visa. W both working for the US government in Kuwait on the military base. After the wedding we came back to work to Kuwait. We are about to fill it out the I-130 form. After we submitting the form am I allow to travel myself back and forth to visit my us citizen daughter? US military base is a US territory ? Do I need to stay in the States while im under the I-485 process?
    Thank you very much and look forward for your answer.
    With much Respect
    Nora Horvath

    1. Nora, you probably need to do some more research on this. The Form I-485 for “adjustment of status” is not used when the applicant is located outside of the United States. Instead, you will end up pursuing a DS-260 application through a U.S. consulate. Whether you do this on your own or speak to a lawyer, get clear on the steps now or else this will be a big mess.

      As described in this post you can potentially travel while and I-130 is pending. But the burden will always be on you to demonstrate that you intend to return abroad without overstaying your B-2.

  14. Hi,

    Thanks for the information above. I understand that this is case by case scenario and the CBP has the final say.

    I recently married a GC holder whilst I was under the VWP (my wife has also recently submitted her application for USC). I have since left the states to return back to Australia and we are looking at our avenues to not be too far apart for a long period of time.

    My wife and I’s future plan is to settle here in Australia however we are also looking at submitting an I-130 at the same time to allow myself to travel back and forth to visit family whenever I like instead of using the VWP. however as we wish not to be apart for too long, I would like to travel back to the states sometime this year again using the VWP whilst considering the I-130 form.

    My question are;
    1. Is it best that we wait to submit the I-130 form and I travel under the VWP in the time being OR
    2. Submit the I-130 and show proof to the CBP that I have submitted a request to petition my wife here to improve the chances of proving my intent that I’m not permanently not settling in the US?

    Thank you and I look forward for your response.


    1. Hi, Zel. As a generally matter, it’s marginally harder to travel freely on VWP once and I-130 is filed. With that being said. Australian citizens with good ties to their country – and no history of immigration issues – travel on VWP all the time while processing an I-130. The thing to focus on is your longterm goals. If you plan to remain residing in Australia – and just want to be in the U.S. for visits – then a B-2 might make a lot more sense. The I-130 route is for folks who want to make the U.S. their primary residence. If that’s not your goal then you may be heading down the wrong path.

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