Having a long-distance relationship with a foreign national can be a real struggle, and not being able to visit your loved one whenever you wish is an obstacle imposed by immigration law for many international couples.
Fortunately, it’s possible to visit your foreign spouse (husband or wife) in the U.S. while your marriage-based green card application is still pending. To come to the U.S. for a visit, you need to apply for a tourist visa. Still, there are some challenges and risks that you need to be aware of before pursuing this option.
In this guide, we’ll discuss those risks and challenges in greater detail, how to apply for a tourist visa, and typical issues encountered.
How A Foreign spouse Can Come to The U.S. On a Tourist Visa?
As many people try to misuse the the tourist visa, the U.S. government agency use many technics to ensure that you do not intend to stay in the U.S. until you receive the lawful permanent residence status.
#Convincing U.S. Citizenship and immigration services officer
First, you would need to convince a U.S. immigration officer that you came only for a visit and intend to stay only for a short period of time and leave the country before your granted tourist visa expires.
#Passing the BCP
If you manage this one, the second hurdle to overcome after convincing the immigration officer of your intentions will be to pass the inspection by a U.S. Customs and Border Protection (CBP) agent.
Upon your arrival in the U.S., a U.S. Customs and CBP agent will pose a number of questions to you at the border or “port of entry.” A port of entry is where foreigners first physically enter the United States. You can expect the CBP agent to ask you to explain why you are visiting, who you want to visit, and for how long you’re staying. According to your answers, the CBP agent will decide whether to trust you and let you enter the United States or you will be denied entry.
#Remember: Stay Honest!
We highly advise you not to misrepresent your reason for visiting the U.S. You need to be honest while filing an immigration form and answering questions before an immigration officer or a CBP agent.
Also, government officials have diverse mechanisms to do a background check on suspicious immigrants, so you shouldn’t ever lie about being married to a U.S. citizen or green card holder because it can prevent you from becoming a permanent resident.
Any such misrepresentation could jeopardize your future eligibility for a green card.
Remember, even if you have a valid tourist visa, it is not a guarantee that you will be admitted to the U.S. There have been many cases when foreign spouses of U.S. citizens seeking a green card get denied entry at the port of entry or the border. It is not uncommon for a CBP agent to find out they are married to a person living in the U.S. (whether he or she is a legal permanent resident or a U.S. citizen) and have a pending immigrant visa petition.
Preparing Tourist Visa Application While Waiting For My Green Card
The foreign spouse of a U.S. citizen or a green card holder — especially if he or she has a pending I-130 petition often faces additional scrutiny before admission. If you visit your U.S. citizen spouse on a tourist visa, the immigration officer processing your application could suspect that you’re trying to bypass the green card process to be with your spouse sooner.
When an immigration officials review tourist visa applications, they will look for:
- The applicant’s plan to return to the home country after visiting the United States
- Proof that the visit will be temporary and short
- Having sufficient financial resources to support oneself during the visit.
This applies to a foreign spouse applying for a tourist visa and to those entering the U.S. under the Visa Waiver Program.
The Visa Waiver Program allows citizens of certain countries to travel to the U.S. without a visa for 90 days.
If you still haven’t made any plans to live permanently in the U.S., be clear and precise about it in your tourist visa application.
Also, it would be good to prove that you have ongoing obligations that prevent you from leaving your home country, such as:
- You are employed in your home country
- You are involved in an educational program
- You have a confirmed travel plan with a precise return date to your home country
Still, we want to stress enough how much is important not to lie that your spouse is a U.S. citizen or green card holder because lying could jeopardize your ability to get a green card in the future.
Having a pending I-130 petition
Visiting your spouse in the U.S. while you have a pending I-130 petition, An immigrant Petition for Alien Relative (for your spouse, and minor children), involves walking a logical tightrope.
The U.S. officers or CBP agents will be aware that you will live permanently in the U.S. one day once you receive your green card. Still, this time you will have to convince them that you will not be settling in the U.S. yet and that you will leave the country and wait for the approval of your application.
If you have already undertaken some actions as a part of the preparation for your moving to the U.S., such as quitting your job or selling all of your property in your home country, it would be challenging to convince the government officials that your visit is temporary. Because of this, we advise you to postpone these actions and do it after you come back from the U.S.
It’s therefore essential to present substantial evidence that you plan to return to your home country after your short visit. Still, keep in mind that there is always a risk of denial, as admission is never guaranteed.
Not having a pending I-130 petition
If you still haven’t started the marriage-based green card process and filed an I-130 petition along with the supporting documents ( a copy of your civil marriage certificate, other evidance demonstrating that all previous marriages of you and/or your spouse were terminated or a death certificate of previous spouse, birth certificate or a copy of Consular Report of Birth Abroad, etc.).
However, do not consider that you will not face additional scrutiny when applying for a tourist visa or when arriving in the U.S. The immigration officers still can suspect that you intend to avoid the whole green card process. Some foreigners try to trick the visa processing and enter the U.S. on a tourist visa and then apply for a marriage-based green card.
What Can Affect My Visa Approval While Waiting for My Green card?
Besides the factors mentioned above that can negatively affect the approval of your visa application and admission to the U.S. when you arrive, there are more those to be aware of:
Immigration officials will do a background check of your previous arrival to the U.S. If you have a history of entering the U.S. by violating immigration law, such as misusing the granted visa or even overstaying it for only one day, you can expect that you will be prevented from entering the U.S. But, if there is no such record, immigration officials are going to believe your intentions to visit the U.S. temporarily and return to your home country after the visit.
#Your Country of Origin
Generally speaking, foreign national applicants coming from a country with high rates of immigration fraud are more likely to be considered suspicious. They have a hurdle of convincing the immigration officer or CBP agent that they intend to visit the U.S. only as a tourist.
U.S. immigration officials have not listed those countries excessively. Still, foreign nationals from Brazil, China, the Dominican Republic, India, and Mexico should be prepared to answer additional questions and be more detailed scrutinized since those are countries subject to relatively high rates of immigration fraud in past years. If you come from such countries, make sure that you can establish that you have strong ties to your home country.
#Having Relatives in the U.S. (U.S. citizens and Lawful permanent residents)
Having a lot of family members and other relatives in the U.S. could as U.S. citizens of green card holders also attract additional scrutiny from immigration officials. They may believe that you are less likely to return to your home country if you have strong family ties in the U.S.
Besides other proof that you prepared, having a round-trip ticket can help you demonstrate your plan to return to your home on a specific date.
Can I Visit My Spouse on K 3 Visa?
The K 3 nonimmigrant visa is intended for the foreign spouse. This visa category shortens the physical separation between the international couples providing them the option to obtain a nonimmigrant K 3 visa overseas and from the inside of the U.S. await approval of the green card.
Upon approval of the immigrant visa, K 3 visa holders can apply to adjust status to a permanent resident with the Department of Homeland Security.
The U.S. citizen’s spouse applying for a nonimmigrant K-3 visa must have an immigrant visa petition filed and pending approval. Also, a K-3 visa holder must meet some of the requirements of an immigrant visa. It is important to remember that if a couple gets married outside the U.S., the applicant must apply for the K-3 visa in the country where the marriage took place, or the country stated on the marriage certificates.
More detailed information about visas for foreign national spouse, you can find on the USCIS website.
How An Immigration Lawyer Can Help Me Obtain the Immigrant visa?
If you want to go through the immigrant visa application process and become a permanent resident or receiving adjusted status, having an immigration lawyer to help you prepare different kind of immigration forms and required documentation, or deal with different complex scenarios can be a huge advantage.
Any mistake in your green card application and breach of immigration law can affect your petition and prevent you from getting a immigrant visa.
Herman Legal Group has over 26 years of experience with one of the most experienced immigration attorneys who offer quality immigration services.
You can schedule a consultation with an immigration attorney via Skype, Zoom, WhatsApp, or Facetime, or you can decide to visit our law firm to discuss your case. You can contact us via +1-800-808-4013 or +1-216-696-6170. If you prefer to speak with the immigration lawyer Richard Herman, you can also book your consultation online.