Late in the evening of April 20, 2020, President Trump announced by Tweet that he…
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?
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:
- 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.
- 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.