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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.

Conclusion.

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 108 Comments
  1. I’m a medical student in my home country and I want to travel to the US for a 1-month clinical rotation at a US hospital after which I’ll be coming back home to finish my education. I have submitted my application for a B1 visa (don’t worry about whether this is the right visa or not. I’m sure it is as a lot of my colleagues have successfully used it. Please just kindly respond to my pressing questions).

    The issue is that I have a pending immigration petition filed by my dad who is an LPR and I’ve also been denied a student visa under 214(B) about 5 years ago.
    Here are my questions:

    1.What are my chances of getting a B1 visa?
    2. How can I convince the consular that I do not have an intent to immigrate at this point in time?

    And the most important question:
    3. If my B1 visa application is denied, how will it affect my immigrant visa approval in future keeping in mind I have earlier been denied a student visa due to section 214(b) about 5 years ago?

    Kindly provide me these much needed answers

  2. Thanks Greg for clarifying the query I had asked previously.

    I have another query which I need to get some clarification on

    My wife has applied for re entry permit through I 131 form which was issued on Feb 2017 and is valid till Feb 2019,

    However before the re entry permit was issued, she left the US in November 2016 and received the re entry permit through the US embassy

    My question is until when can she stay outside US? till Nov 2018 or till Feb 2019? as the re entry permit is valid till Feb 2019 however she would have completed 2 years outside US in Nov 2018

    Thanks

  3. I am from Pakistan residing in UAE since Almost 25 years and currently working under govt sector with company provided house and other facilities and good salary.

    I have had B2 visa in Sep 2016 and travelled to US in Oct 2016 and returned in Nov 2016.

    My wife is green card holder since 2011 and I have recently in March 18 applied for the Green card

    My Wife shall be visiting US after almost 2 years having already applied for Travel permit that is valid till Feb 2019.

    We intend to Travel Next month in Nov 2018 and I intend to be there for 3 weeks and then return while my wife stays there. During this stay we also plan to visit Canada for a short duration.

    My question is how much chance do I stand on getting admitted at the airport and what should I be telling the immigration officer regarding my green card application (Shoudl I tell it first up or wait till he asks) or visit

    Moreover If I get denied this time would the denial be permanent and I wont be able to use my B2 visa any more, do they also cancel this B2 visa when they deny entry

    Regards

    1. Muhammad, as-salamu alaykum. You don’t need to volunteer information about the greencard application (or anything else) – answer only the questions you are asked. If the officer has concerns about immigrant intent then you should be given a chance to “withdraw your application for admission” rather than having your visa canceled or facing removal. I’d recommend being prepared with documentation – such as pay stubs and rental agreements (translated) – to show your current situation in the UAE.

  4. I’m a medical student in my home country and I want to travel to the US for a 1-month clinical rotation at a US hospital after which I’ll be coming back home to finish my education. I have submitted my application for a B1 visa (don’t worry about whether this is the right visa or not. I’m sure it is as a lot of my colleagues have successfully used it. Please just kindly respond to my pressing questions).

    The issue is that I have a pending immigration petition filed by my dad who is an LPR and I’ve also been denied a student visa under 214(B) about 5 years ago.
    Here are my questions:

    1.What are my chances of getting a B1 visa?
    2. How can I convince the consular that I do not have an intent to immigrate at this point in time?

    And the most important question:
    3. If my B1 visa application is denied, how will it affect my immigrant visa approval in future keeping in mind I have earlier been denied a student visa due to section 214(b) about 5 years ago?

    Kindly provide me these much needed answers.

  5. Hello, My dad had filed a I-130 Petition for me, but recently canceled it. It was only at the initial stage and it was successfully canceled. My question is, will this affect me getting a tourist visa or J1 visa in the future ?

  6. Hi there,

    I commented this on another page but can’t find it so I’m sorry for the repeat question. If my fiance comes to visit while the I-129f is in the initial review phase, do we need to submit an updated form I-94 to reflect the visit? Or do they just want the I-94 at the time of application?

    Thanks,

    Katie

  7. I’m a medical student in my home country and I want to travel to the US for a 1-month clinical rotation at a US hospital after which I’ll be coming back home to finish my education. I have submitted my application for a B1 visa.
    The issue is that I have a pending immigration petition filed by my dad who is an LPR and I’ve also been denied a student visa about 5 years ago.
    Here are my questions:

    1.What are my chances of getting a B1 visa?
    2. How can I convince the consular that I do not have an intent to immigrate at this point in time?
    3. If my B1 visa application is denied, how will it affect my immigrant visa approval in future keeping in mind I have earlier been denied a student visa about 5 years ago?

    Kindly provide me these much needed answers.

    1. Benson, this doesn’t sound like an appropriate use of a B-1. If you are working for a U.S. hospital they are responsible for sponsoring you via the appropriate employer petition. B-1s can’t be used for work at a U.S. employer.

          1. Okay. That’s fine. I’m sure that’s what I need. Tons of my colleagues have gone through the program with a B1 visa but this isn’t my primary issue.

            Please kindly help answers my questions.

  8. Thank you for the helpful advice! This might be a silly question, but I was wondering what happens if you’re turned away at the point of entry? Do you just have to immediately book a return ticket back to your country?

    My husband and I have been married for 5 years this November. I am a US Citizen and he is Egyptian. We submitted the I-130 in March, but realize it’ll still be a while before he would get the immigration visa. He hasn’t traveled to the US before because he had required military service for the last 3 years and couldn’t leave the country until it was completed. I never applied for a tourist visa for him because I thought he would get denied (lives with family and works for a non-profit). At this point, we’ve waited so long that we obviously want to do things legally. However, we would really love for him to come and visit me for our anniversary in November and the holidays in December/January. I know you can’t really give assessments other than the info provided in the article, but I figured it wouldn’t hurt to ask if you have any thoughts or advice?

    1. Hi, Abigail. Assuming that he would be flying to the U.S., if denied entry he would be returned to the international arrivals/departure area of the airport and would have to immediately leave on an outbound flight. For travelers on the ESTA program the airline is required to return the passenger. But as an Egyptian he would be on a B-2 visa and would be responsible for purchasing his own ticket.

  9. I have being married with my husband for 4 years and we have a child. We want to move to the US so we are filling the I-130 and in a couple of months he will move to the US. He is a US citizen.

    We dont want to be separated for too long, specially for our child. I dont want him to forget his dad while we are waiting.

    I had being in the US for several times even before I married my husband for both business and leisure. I had being renewing my B1/B2 visa since 20 years ago.

    While my husband is in the US and my petition will be pending, can we (specially me, my child is a US citizen) visit him? Lets say stay there 15 days, then come back and so on a couple of times?

    I currently work and we have a house in my country.

    1. Hi, Darcy. It’s as described in this article. Yes, you can potentially make the proposed trips, but there is no absolute guarantee that the border agent will permit you to enter. But under no circumstances conceal what is happening with the I-130/immigrant visa process.

  10. Hi,

    I’m from the UK and currently reside there. My US wife (currently in the US) sent a ‘petition for alien relative’ form in July for me, with a view of applying for a green card for me afterwards.

    Now she is pregnant and is due in February. Would I be able to go over on an ESTA to be there for the birth in February? our Green card application might not be done by then.

    My situation: I have a job but I don’t own property, only renting.

    How likely is it that I will be turned away at the border?

    1. Howdy, Stephen – congrats on the upcoming birth! As you may have heard, we are in the process of Making America Great Again over here. That means pretty rough standards at the border. There is no data-driven way to give a statistical appraisal of your likely result at the border. But the factors you list are positive. It is unlikely your immigrant visa will be issued by February. One approach would be to apply for a B-2 visa at the US consulate in London, which may be some degree of advance approval – as against ESTA – concerning the immigrant intent issue. Best of luck, congratulations, and hope this works out well.

  11. Hi…I am a junior student at the United Methodist university, age 21,my mom is a legal permanent residence in the usa ,she wil be inviting me for the Christmas to spend two week with her..I wil be applying for my b2 visa in September( do I Stand better chance for my visa to be approved)

      1. I am a junior student at the United Methodist university in liberia, wil be applying for my b2 visa to visit my mom in September for 2weeks. .she is a legal permanent residence. .my father wil sponsor my trip. .do I Stand a better chance.??

  12. Hi,

    I already have a K-1 visa on my passport and I also have a B1/B2 visa. I am planning on traveling to the US in October to get married with my fiancee, however I want to attend a friend’s wedding in September in NYC. Do you think I will have any problem entering to the US as a tourist in September and coming back to my country a couple of days later, and then finally using the K-1 visa in October?

    Thanks for the help!

    1. That would be a very unusual scenario. Why not just enter on the K-1 and get married on that first trip? You can always return home after filing for adjustment of status *and* getting your advance parole.

      1. The issue is that I still have a job in my country and I already agreed to leave later. Do you think there will be any issue if I enter with the B1/B2 visa and then two weeks later come back with the K1 visa and stay. Let me know, thanks!

  13. My fiancee hopes to come visit since with my work schedule its very difficult to go visit her and also save vacation days for the honeymoon. She lives at home and doesn’t have a full time job. Is there anything she can do to better her chances to gain access to visit? She does have family near me in the states. And she plans to return after 3 or 4 weeks and go through the full fiancee visa process.

    1. There’s really not much you can do strategically to better her chances of a B-2 approval. But it is relatively easy and quick (and cheap) to apply for the tourist visa. So the costs of at least trying are low. But just dot all your “i”s and cross all your “t”s to ensure the consulate doesn’t think you are hiding your goal of pursuing the k-1 later. The best thing you can probably do is to get things rolling ASAP with the I-129F.

      1. Thank you for your response. I forgot to mention, she does have a tourist visa already. I just wasn’t sure if she could get turned away and what questions they may ask when she tries to come into the country. We definitely plan on her returning to Mexico or we wouldn’t have started the fiancee visa in the first place.

  14. hi there , i applied my 130 in april, thn this week i applied for b1 b2 visa for honeymoon purposes , at first councelor denied but whn i explained to him tht i hav my sister marriage in dec i will surely return for that and next year is going to b busy for me regarding my usmle studies so this time frame is best for honeymoon he gave me bisa . iam just wooried that if i giv them return ticket , an affidavit that iam living with my family in bahrain, honeymoon bookings , financial statemnts , will i be denied entry still as my petition is filed thankyou

  15. I had filed I 130 for my father while he was out of the US; at the time he had been granted a one year visitor visa. He recently arrived in US under his visitor visa, while I 130 is still pending. Although the intent was to return for his interview, I am now contemplating the possibility of filling the I 485 for and adjustment of status; so I called USCIS and got different stories, a representative said it was possible and another said it was not and that I may loose the I 485 filling fees.

    Have you encountered this situation and can you tell me more?
    Thank you

    1. Hi, Ben. We see cases like this all the time. Ultimately, it depends on the actual facts of the case and whether there was a preconceived intent to file the I-485. And not just whether there was the actual intent, but whether there are facts that would suggest to an officer that such an intent existed. You may wish to weigh the downside risks of an I-485 denial – not just losing the filing fee, but a lifetime fraud bar, potentially – against the cost and inconvenience of just having your father return home for immigrant visa processing.

  16. Hi,

    I’m on a pending fiance visa and I’m in need of a tourist visa going to Guam to attend my scheduled exam on October. The exam is only taken in US territories and Guam is the closest I could go to from my country (Philippines) to sit for the exam. Will I be eligible to receive a tourist visa?

    If yes, can I visit Georgia, where my fiance is, after I take my exam in Guam? Will there be a problem when I go to the mainland? Will I still be inspected by the CBPs? Or would it be easy for me to go to Georgia from Guam?

    Also, if I’m in Georgia, can my fiance cancel the fiance visa he petitioned and marry right ahead? Or will this raise suspicion to the consul?

    Best Regards.

    1. Hi, Gretchen. Yes – this is a viable scenario for a B-2 application, though of course it is up to the US consulate as to whether they are willing to issue it. The fact you are planning to sit for a licensure exam should be a compelling reason for them to believe you will return to the Philipines to complete processing of your K-1. You can also potentially visit Georgia – yes you will be subject to inspection there and at Guam – but under no circumstances should you try to conceal this plan when applying for a B-2. The plan to visit your fiance will probably make it less likely that the consulate will issue a B-2. No, you cannot do this with the plan to seek adjustment of status in lieu of a K-1. Doing so would be an act of fraud that could subject you to a lifetime ban from the U.S.

      1. Thank you for your reply. That’s a lot to take in. So it’s best to come back to my home country and just wait for the apporval of my Fiance visa. With my situation it is likely that I will be given a single entry visa for 3 months given my purpose which is to take the exam in Guam. With this, will I be able to go to the mainland specifically to Georgia to visit my fiance with a single entry visa?

        Your thoughts would be much needed.

        1. We can’t offer conclusive case-specific guidance here based on such limited information. But the risks – and factors to be considered – are the ones described above. The purpose of your trip is legitimate and appropriate for a B-2 use. The risk is primarily that a CBP official would not believe your story.

          1. Hi,

            Anyway, I was just approved of a tourist visa with a validity of 3 months with single entry. In my first comment, I mentioned that my purpose was to take my exam in Guam and that I have a pending fiance visa. My question is, since I am already given a tourist visa and I plan to take my exam in the mainland, specifically in Georgia instead of Guam which I stated in my application. Will I have a problem entering the mainland? Or is my visa only for Guam?

  17. Hi,
    My mother has recently received her tourist visa, but after some consideration (during the interview the consul told her that this time she cannot stay for 6-month period as she did before) we decided that she will apply for the greencard through the consulate. I am a naturalized citizen, and will file I-130 for her. While pending the case can she still use her tourist visa to come to the US? If so,would she face any issues entering the US or extreme limitations on her I-94 (like to be allowed to stay only for 1month)?
    I am expecting a baby soon, and would like her to stay with me for at least 3 months. My mother visited the US four times since 2013, always for the periods of 155-175 days, and has never violated any immigration regulations.

  18. Hello guys 🙂 can i ask about tourist visa and spousal visa? And I have plan to apply tourist visa in usa my husband is us citizen and he still processing the Spous visa there’s no problem if i apply tourist visa while im pending in spousal visa we already sent the FORM I-130 but until now no feedback i hope someone can answer my question.

    1. Hi, Suzy. Not sure we completely understand the question, but yes, you can apply for a B-2 tourist visa for a spouse who is going through the immigration process. But as described in this post, they can be denied entry even if a visa is granted. A visa permits a person to seek entry into the U.S. but does not guarantee entry.

  19. Hi
    I am from pakistan and my parents have filled my I-130 petition in 2014, i am in canada right now on study visa. I already tried to get US study permit but was denied. So i came to canada. Now when i am living here for almost last 3 years , i want to visit US for coming Eid celebrations. I have Uk visitor visa and france visitor visa as well. My brother is US citizen as well. I am working as a part time bookkeeper and my diploma ll b completed in 4 months and i already got admitted in a college for my 2 years course and paid my next course fee as well . What are the chances for me to get visitor visa . And what proof should i bring to my interview. Thank you

    1. None of the foreign visas are particularly important to the U.S. consulate. Depending on the basis for the prior denial you might want to refrain from applying so as to avoid multiple denials in your record. It might make a lot more sense for your family to join you in Canada for Eid.

  20. Hi, so here’s our situation: My fiance already has a B-2 tourist visa. I am a US citizen, and to avoid all this visa fraud related things we are going to file for K-1 fiance visa. So my question is: since this K-1 visa approval process takes around 8-12 months, can my fiance visit from time to time with her B-2 visa while K-1 is still pending? the fact that she will have to go back to her country for K-1 visa interview, is not it enough to convince the immigration officer that she’s not going to overstay here illegally? even though she’s technically an intended immigrant, we are doing everything legally and she does not have an intend to overstay under her B-2 visa and to waste all the money we paid for K-1 visa. there should not be any problems right?
    thanks

    1. Hi, GT. The rules are as described in this post. Yes, she potentially can. But the immigration officer has a huge amount of discretion in considering whether to allow her to enter, considering the factors described above.

  21. Hello,
    I am a US citizen and filed I-130 for my mother and my sister this year (they live in Israel). My mother already received her I-797 approval notice and waiting for consular interview. They plan to visit me on tourist visa this summer for one month. They already have their tourist visas they got last year so they do not need to apply again (they visited last summer without issues, although I-130 wasn’t submitted then). Can you please share you thoughts whether they could have problems at port of entry? My sister’s wait time is about 14 years, does that means she can’t visit me here in USA? If they not allowed to enter US at airport and sent back, does this effects their chances to get immigrant visa (my mom is waiting for her interview at consulate in Israel)?
    Thank you very much!

    1. Hi, Alex. As you can tell from our other responses to similar questions, it’s extremely hard for us to offer case-specific input in these situations. The bottom line is that it’s up to the CBP officer to make the determination, based largely on the factors we list in the post. We wish it were possible to give more definitive input, but it simply isn’t.

  22. Hello there. I Am a US citizen living with my japanese husband in japan. I have a work visa since I recently just got married after three years of relationship. I haven’t changed my status to spouse yet since my work visa is good for five years. I’m not married yet in the USA. I was in between asking for an i-30 application from japan or just applying after the 90 day with my husbands ESTA and adjusting from abroad. Im leaving for a new job in November of this year 2018 and couldn’t bare to live apart from my husband. What is the best way to apply and still be together through the whole process, this is the most important to me.

    1. Hi, Alana. If you’re going to handle this yourself you need to do a lot more research first.

      1. A lawful marriage in Japan is sufficient for U.S. immigration; there is no need (or ability) to get married again in the U.S.
      2. There is no such thing as “adjusting status” from abroad. Also, it’s an I-130, not I-30.
      3. Entering the U.S. on ESTA with the intent to adjust status is usually an act of fraud that can result in denial of adjustment, as well as possible deportation and a lifetime fraud ban from the U.S. Read more here and here.

  23. Hi,

    Me and my fiancé are applying for the i-129f.
    I’m a Danish citizen and I already have my ESTA, from previous visits to the US. We met here in Denmark and want to go to the USA to start a life together, since her job in Denmark ends in July.
    I would like to visit her while the petition is pending.
    How risky is it for me to visit? I don’t own property, but have a steady job. Do I fill in a form before take-off or just inform the passport control officer about my situation when I land? I’m all about doing this right and don’t want to jeopardize the chances of our I-129f approval.

    Thank you,
    Dearest Brian

    1. Hi, Dearest Brian. Unfortunately, there’s really no data-driven way to forecast the risks in a particular case. The factors listed in this post are the ones that the immigration agents are permitted to consider. As you probably already know, you have to complete the ESTA paperwork before you’re able to board the plane. One alternative is to apply for a B-2 visa. Some attorneys believe this adds some additional risk-mitigation, because the consulate gets a first chance to hear your story about why you want to continue visiting during the petition process. There is no downside apart from the cost and time of applying.

  24. Hello,
    Thank you for this really helpful article! I have a few questions and would really appreciate any help I can get.
    I am an American citizen and my husband is a Taiwan national. We currently live in Taiwan and we are in the process of applying for his immigrant visa (past I-130, case is at the NVC right now although we have not submitted the Affidavit of Support documents yet).
    I have some family events to attend to in the US so I will be traveling there for three weeks with my daughter (US citizen born abroad). My husband would like to join us in the last week and we will all fly back to Taiwan together. How high of a risk is there that he will be denied entry? Would it make a difference whether we use ESTA or apply for a non-immigrant visa? Most importantly, would applying for either affect his pending immigrant visa case?

    1. Hi, Beth. As discussed in many previous responses, it’s really impossible in this context to give any meaningful, data-driven advice about the risk in a specific case. The factors to be considered are those discussed above. Some lawyers do agree that applying for a B-2 visa is preferable in these cases, as it allows a consular office to take a first look at the merits of your case before you fly to the states. But there is no data, besides anecdote, to show that this actually helps in the real world. But it would not hurt aside from the time/cost/hassle of applying for the visa.

  25. Hi,
    We are applying for a I-129f visa for my fiancee to come to the United States. We have planned our wedding for middle of August but the NOA2 has not come yet even though we applied back in November and we are getting worried. We were thinking of having her come to US on a B2 just so we can have the party and not have to cancel and waste the flights and reservations. She is from Slovenia has her own place but is currently only tutoring to meet ends meet. What things could we do so she has better shot of getting in and what are our chances roughly?

    1. Hi, Nick. There’s virtually no chance you’ll be able to secure the K-1 on the timetable you’re talking about, unless you luck out and get your petition transferred to another processing center. In terms of a B-2 entry, there’s little to be done in terms of changing your facts. It’s more a matter of adequately documenting her ties. So, for example, if she has her own place she needs to travel with a (translated) lease agreement or proof of ownership. You’ll need to understand, however, that there is certainly no guarantee her entry will be allowed, which would be a real mess.

  26. Hi,
    Thanks for the information above. My husband and I got married in 2008. My husband was in the U.S with me from 2008 to 2015 on J1 visa (with 2-year tied to home country). We have 2 children. From October 2015, he returned to his home country, Vietnam. Every year, he came to the U.S on tourist visa to visit us 2 times (around 1 month each time). He just fulfilled the 2-year requirement and I just became the U.S citizen recently.
    We have the package for I-130 ready and about to submit the application (in early June). He also had a plan to come visit us in June 21. He is a professor at a university so he always visits us during summer when school ends. If I submit the I-130 now, it is only 3 weeks before his trip. Is there a risk for him to be admitted to the US on tourist visa? Thank you very much for your help.

    1. Well, there’s always a risk. But a long history of lawful travel – like you describe – is a very good place to be starting from. Also, having ongoing professional employment like his is another very strong factor. We can never offer a prediction in situations like this, but based on what you describe this sounds like a very promising scenario for him to be able to make a successful trip on the B-2.

  27. Hi,

    Here’s my situation, My husband is a US citizen and is a physician, I’m currenlty in medical school outside the country. We got married last year in the US and filed for all the necessary documents, however I left the country before my applications were approved as I had to return to school.
    Upon returning I was denied entry and the agent had voided all my applications except for the I-130. I also have a valid B1/B2 visa, I was wondering if there might be a chance of re-entry as a visitor (since my application as am immigrant has been cancelled) if I provide prove that I will leave.

    Thaks you

    1. Hi, Mary. It sounds like you originally filed a Form I-485 adjustment application. These are abandoned by operation of law if you leave the country before an advance parole card is issued. If the I-130 was approved you can now pursue consular processing. But you first have to get the I-130 transferred to the National Visa Center, which can take months. Meanwhile, you can try to travel to the US on a B-2, but you risk a denial at the point of entry for the reasons discussed in this article. If you are still planning to live in the U.S. you should get started immediately on consular processing.

  28. I intend to apply I-130 for my mother who is living in India. I am a US citizen, how long does it take for a green card to be processed for parents of US citizen. Some are saying it could take up to a year. Also she currently has non immigrant visa valid till 2022 and can she visit USA while her I-130 petition is pending.

    1. Yes, one year is more or less a fair estimate for an immediate relative petition. As far as travel to the U.S., that’s as described in this post. It’s fair to say that Indian citizens traveling on B-2s with pending I-130s are subject to heightened scrutiny – due to higher rates of visa overstays than VWP countries – so she should not necessarily plan on a smooth ability to travel during the pendency of the petition.

  29. Hello.
    First of all, thank you for that useful information.
    I’m in the same situation, having valid B2,which i used for visiting US 3 times and also my Case is completed at NVC,now waiting for priority date to become current(13 sept. 2016). I’m not going to ask whether I can reenter US on B2 or not,it was explained well in your post. I just want to know,if my entry would be denied, what consequences would it have? Is it possible, that I would be banned for some period of time, and won’t be able to enter US, even if I will obtain my immigrant visa?
    Best wishes

    1. Great question. The guidance provided by Customs and Border Protection is that they will normally allow you to “withdraw your application for admission” if they decide that they cannot allow you in. This results in you having to return home immediately, but without negative consequences for your immigrant visa case. The exception is if they believe you are being dishonest. Then they can place you into expedited deportation proceedings, in which case you will be barred from returning.

      1. Thank you so much. I really appreciate your effort to help us, give us good advices and you are doing that really well.
        Good luck

  30. I am a US citizen. My son has a valid 10 years tourist US visa. He has visited me several times and back home to our country because he has a job in the international airlines as airport services supervisor. He always come and visit me here in the US the most is one week stay.
    Will he be able to come and visit me here in the US after filing I-130?

    1. Hi, Nelfa. Well, it’s like we describe in the article above. The answer is potentially yes, but it depends both on his ability to show ties to his country and also on the whims of the officer conducting the inspection. There is no way to know for sure in advance how they will handle a particular case.

  31. I am a Nigerian man and i am married to a woman,she is a citizen of the United states of America…she just filed for I-130 this month of April,2018. She has arthritis and she is due for surgery. She had minor accident two weeks ago…i want to go visit her on B1/B2 tourist visa…i have applied for B1/B2 visa before 3times in 2015 and I was denied. So what is my chances of getting this visa now that i am married to a USA citizen and my I-130 ID filed? Will the fact that i have applied for tourist visa 3 times affect me after 3 years of trying?

    1. That doesn’t look very promising. And remember, even if you get the B-2 approved (which looks relatively unlikely), you could still be denied entry at a US port of entry. A visa *does not guarantee entry* – only the chance to apply for entry.

  32. Hi,
    I am a British citizen, from the Uk and am in need of some advice please which would be greatly appreciated.

    My husband is a US citizen and has filed the petition I-130A in February 2018. He recently received a letter (Form I-797C) from USCIS to say they have received and is being processed. So we are at the initial stage of the process and we both understand that there is still a long way to go
    So my question is can I visit him for just about 3 weeks whilst my case I-130 is pending? I will have a return ticket to go back, will this be sufficient?

    My last visit to the states was in November 2017 for about 8 days and prior to that I also went in April 2017 for about one month.

    We both really want to be with each other as its been more than a year since we got married, but at the same time we don’t want to risk it in case of denial for entry access or in case it might affect the petition on the long run?

    Any idea of how long the whole process might be or what we should expect to hear from them?

    Many thanks for any suggestions!

    1. We are advising our clients to expect approximately a year from start to finish on a marriage-based consular processing case – if all goes smoothly.

      In terms of the viability of traveling to the U.S. with a pending I-130 (the I-130A is not the petition, it is just a supporting form), that is very fact dependent. As described in this post, there are a number of factors that the immigration officer is entitled to look at. The bottom line is that the foreign national is not guaranteed the ability to travel to the U.S. in such circumstances. There will always be an element of risk that the individual will be turned away.

      1. Thank you so much for this info!

        Roughly do you know how long it will take for the I-130 to be approved, The service centre for our case is Texas.

  33. I have applied for my parents GC. they are in India currently. I have filed the I-130 and the AOS. They also have the B1/B2 visa. My question is
    will there be an issue if they are traveling on the visa to visit me in the US.
    They will have their return tickets and will be returning in 3 or 4 months.
    I don’t want to take the risk of them being turned away at the airport after a very long flight at their age so wanted to check and make sure.

    thx

    1. Hi, Thomas. As described in this article there is definitely a risk of being turned away. The CBP officer is entitled to look at the full situation and make a judgment call about whether he thinks they will abide by the terms of their visa. The reality is that you cannot be 100% sure of how the officer will decide.

  34. Thank you for providing these helpful scenarios. I fall under the category of example 1 as we are expecting a child in May 2018. I am a US citizen and my fiancé is a resident of South Africa. We have submitted a I-129F petition and with the currently processing timeline, it likely will not be approved for another 3-4 months. He applied for B2 visa in October 2017 and was denied based on not having strong enough financial/economic ties to his home country. He works as a game ranger at a safari lodge which has been his career for the last 7 years. Due to his work schedule (6 weeks on, 2 weeks off) he resides at the safari lodge and returns to Jo’burg to stay with family during his weeks off. As such, he does not own/lease a residence. He is single, white male 30 years old and no previous kids. I was wondering the likelihood of him getting approved to come over for the birth of his son in May 2018 for one week, since he can only take off 2 weeks before he has to return to work. Would a letter from his employer stating his residence and work schedule help prove intent to return? He is really torn up thinking he has to miss the birth of his firstborn son so wanted to ask your thoughts. The baby does have a known birth defect and will need surgery when he is 10 weeks old, so was hoping he could be here in the US to support me during that time as well. Thanks in advance for your reply!

    1. Hi, Katie. Congratulations on the coming family member. We’re sorry to hear that s/he will face surgery at 10 weeks, and thank goodness you have access to medical care that let’s you know this in advance.

      A prior B-2 denial makes it even more likely that a subsequent B-2 application will be denied. With that being said, another B-2 denial – in and of itself – should not harm the K-1 application. Based on what you’ve described here he may as well give the B-2 another shot with the employer letter. But the top principle is to be completely open and honest about the fact that he is coming to be present for the birth of his child and that he is planning to immigrate later with the K-1. Do not, under any circumstances, try to conceal those facts.

      Wish you the best of luck with this.

  35. 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.

  36. 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.

  37. 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.

    Thanks

    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.

  38. 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!

  39. 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.

  40. 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.

  41. 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.

  42. 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,
    Nathan

    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.

  43. 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.
    Thanks

  44. 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.

  45. 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.

  46. 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?

    Thanks.
    Regards

    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.

  47. 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.

  48. 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.

    Regards,

    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.

      1. Hi,

        My partner and I have decided to apply for the I130 and currently waiting for a response from USCIS.

        I’m planning to visit the states using VWP for 2-3 weeks, I have never had any immigration issues and have a full time job that I would return to after my vacation.

        In the event that I enter into the US without any issues and come back to Australia after my vacation. Once my petition is in the interview process, I’m assuming the immigration office would have visibility of my history travels to the US.

        My question is, by me entering under the VWP, would this be a breach/penalty of the pending I130 and by doing so be a reason to not have my visa approved?

        Thank you,

        1. Hi, Zel. Yes – always assume that the immigration agencies have full knowledge of all of your filings. So long as you are completely above the board with the inspection officers there is no issue of fraud arising from your visits.

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