Can I Visit the U.S. While Waiting for My Immigrant Visa?

Here’s a question I’m often asked:

I am married to a U.S. citizen. He has started the process for me to get a green card by filing a Form I-130, Petition for Alien Relative. Once it’s approved by USCIS, I will apply for an immigrant visa at the U.S. Embassy in my home country. Can I visit America while I’m waiting to immigrate? I currently have a valid B1/B2 (visitor for business or pleasure) visa.

One variation on this question is that that the individual doesn’t hold a B1/B2 visa but instead seeks to enter as a visitor under the visa waiver program, also known as Electronic System for Travel Authorization (ESTA).

In most cases, visiting the U.S. with a visa or a visa waiver is OK. Still, there is some level of risk of that you will not be admitted. That risk may be very low or significant, depending on your individual circumstances.

The Requirement of Nonimmigrant Intent

To enter the U.S. as a visitor, you must prove to a Customs and Border Protection (CBP) officer at the port of entry that that you (a) are not an intending immigrant, (b) have an unabandoned foreign residence, and (c) are coming to the U.S. temporarily.[1] This set of requirements is often loosely described as “nonimmigrant intent.” Here’s what these requirements mean:

  • Not being an “intending immigrant” means that on this particular trip you intend to limit your activities to what is allowed for visitors and not immigrate.[2]
  • An unabandoned foreign residence means that you have a home in a foreign country. You need not own the home. You must intend to return there as your principal, actual dwelling place after visiting America.[3]
  • Coming to the U.S. temporarily means for a limited time, not indefinitely.

The CBP Officer’s Concerns

You don’t need to volunteer to the CBP officer that you have a U.S. citizen spouse and a green card in process. But the officer may be able to tell from available databases. If so, the CBP officer’s concern is likely to be that you may be seeking to “jump the line,” i.e., intending to move to the U.S. without waiting the 6-12 months or so it may take to get the immigrant visa. CBP keeps an eye out for people posing as mere visitors who actually intend to move to the U.S. and to file with USCIS a Form I-485, Application to Adjust Status, to get a green card without the need to leave the country.[4] CBP also keeps an eye out for people posing as mere visitors who actually intend to give up their residence abroad and live in the U.S. until their immigrant visa appointment.

Ability to Overcome the CBP Officer’s Concerns

There is no magic list of documents you can show the officer to guarantee your entry. There are no magic words you can say either. That’s because the CBP officer will decide whether you qualify to enter based on the totality of the circumstances. Some key factors include:

  • Your ability to explain the limited purpose and duration of your proposed stay in the U.S.
  • Whether you and/or your U.S. citizen spouse are employed abroad.
  • Whether you have children enrolled in school abroad.
  • Whether you own or rent a home abroad.
  • Holding a return ticket abroad.
  • Prior visa refusals or immigration violations.
  • Whether your travel patterns make it appear that you are trying to live in the U.S. prior to issuance of the immigrant visa. (For example, you previously stayed in the U.S. for the entire period allowed by CBP, left just briefly, and then came back for a long period).
  • Whether it appears you are trying to move your personal belongings to the U.S., either in your luggage or shipped separately.
  • Whether your demeanor and/or inconsistencies in your story cause the officer to doubt your credibility

Weighing the Risks and Benefits

The main risk of trying to enter as a visitor while your green card is in process is that instead of admitting you, the officer may question you in detail in a room called “secondary inspection.” The officer may then ask you to withdraw your application for entry or may order you deported. The legal basis for that decision would likely be one of the following:

  • You have made a willful misrepresentation, i.e., lied to the officer.[5] This could include lying about whether you are married to a U.S. citizen, the purpose of your trip, or how long you intend to remain in the U.S.; or
  • You lack valid entry documents, in that you intend to immigrate but lack an immigrant visa.[6]

If you are ineligible for admission for one of those reasons, the officer may as a matter of discretion ask you whether you are willing to withdraw your application for admission. Or the officer may deport you. That is called “expedited removal,” a procedure that allows CBP officers to official to summarily remove a noncitizen without a hearing before an immigration judge.[7]

Expedited removal carries a 5-year bar to reentering the U.S. This means that you cannot re-enter the U.S. for a period of 5 years unless you apply for and are granted permission to reapply for admission (Form I-212).

If the basis of the expedited removal is misrepresentation, then a lifetime bar to entry also applies, unless you apply for and are granted a waiver.

As mentioned at the outset, the level of risk is different for each person It may be anywhere from very low to significant, depending on your individual circumstances. You should realistically analyze the risks and benefits to determine whether to make the trip. Our law firm is available to help you decide and to advise you about CBP procedures, what evidence to carry, and how to answer the CBP officers’ questions in a way that is both truthful and helpful to seeking entry.

Endnotes

  1. INA § 101(a)(15)(B). See also INA § 214(b) (“Every alien [other than H-1B, L, or V nonimmigrants] shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status.”)
  2. Letter, LaFleur, Business and Trade Services, Benefits Branch, INS, HQ 1815-C (June 18, 1996) (approved I-140 “may not be, in and of itself” a reason to deny TN admission). See Matter of H-R-, 7 I. & N. Dec. 651 (Reg. Comm’r 1958) (Applicant withdrew immigrant visa application in order to more quickly obtain visitor’s visa. Six months after entering U.S., he applied for adjustment of status. Held: “The fact that the applicant previously expressed a desire to enter the United States as an immigrant–and may still have such desire–does not of itself preclude the issuance of a nonimmigrant visa to him nor preclude his being a bona fide nonimmigrant” for purposes of adjustment.); Matter of Wellhofer, 12 I. & N. Dec. 522 (Reg. Comm’r 1967) (following Matter of H-R-).
  3. See INA § 101(a)(33) (defining “residence”).
  4. Don’t view your trip to the U.S. as an opportunity to adjust status. As mentioned below, a willful misrepresentation to CBP may lead to a lifetime bar on returning to the U.S. Further, even if you don’t make a misrepresentation to CBP, a preconceived intent to immigrate after entering as a visitor is a negative discretionary factor which could lead USCIS to deny of adjustment. See Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980) (Respondent was admitted as a nonimmigrant visitor for pleasure with a border crossing card. He married a U.S. citizen the same day. Assuming he had a preconceived intent to remain permanently at the time of entry as a nonimmigrant, it is INS policy per OI 245.3(b) that an adjustment applicant should not be denied as a matter of discretion solely on this basis where substantial equities are present in the case. Here, the U.S. citizen wife and child are substantial equities. Notably, the respondent was not charged with any fraud or misrepresentation.); Matter of Ibrahim, 18 I. & N. Dec. 55 (BIA 1981) (limiting Cavazos’ holding to immediate relatives). The State Department takes a slightly different approach to evaluating cases where an individual has entered as a visitor and then files an I-485. According to State Department policy, if within 90 days of entry a person engages in conduct inconsistent with representations made to CBP, such as by engaging in unauthorized employment or filing for adjustment of status, there is a presumption that the individual prior representations were willful misrepresentations.
  5. INA § 212(a)(6)(C).
  6. INA §212(a)(7).
  7. See INA § 235(b)(1).

17 Replies to “Can I Visit the U.S. While Waiting for My Immigrant Visa?”

  1. Hi,

    USCIS has just issued a receipt notice for the I-130 my US citizen husband has filed on my behalf.

    I am a UK citizen. I would like to visit the US with him for 6-8 weeks in March 2019 on my valid ESTA.

    At the proposed time of entry, I will be unemployed and living with my parents but will be in the final stages of preparing to depart for Nepal for a fixed term Volunteer position with an NGO that begins June 2019.

    My questions is, will a job offer letter for the position (stating a June 2019 start date) and proof of booked flights to Nepal (departing from the UK) be enough to prove that I only intend to visit my husband and not side-step the waiting process of the CR-1 visa?

    Thank you for any help.

    1. Jesse: As mentioned above, there is no magic list of documents you can show the officer to guarantee your entry. That’s because the CBP officer will decide whether you qualify to enter based on the totality of the circumstances. (See the above list of some other potentially relevant circumstances). In any case, important commitments outside the U.S. scheduled to take place after the visit to the U.S. can be compelling. Other examples of such commitments we’ve seen include, for example, a wedding, a medical licensing examination, and the opening reception for a solo art exhibit.

  2. Hello, you say ” The officer may then ask you to withdraw your application for entry or may order you deported.” The cost of withdrawing the application is only the cost of the plane ticket. But deportation comes with a 5 year bar to re entry. The consequences are drastically different in severity. Can the officer just deport you without giving you the option to withdraw your application?

  3. Hi,

    Thank you for your helpful article. Is a valid B1/B2 visa invalidated by filing an I-130 (i.e., requiring the filing of a new B1/B2 visa application if you want to visit the U.S. prior to immigrating)?

  4. I will be applying for a green card for my stepdaughter. She already has a b1/b2 visa and has been to the US a couple of times. I’m reading this article to help decide whether I should have her visit while she waits for the green card.

  5. My father, mother and 3 brothers are in the USA. I am 34 years old. In 2016 my father filled an I-130 for me, and I’m waiting to immigrate. In the meantime, can I visit the U.S. for a two-week religious summer camp? I was denied a visitor’s visa in 2011 when I was single. Now, I am married, working and have 4 kids who goes to school. My husband has been to the U.S. two times, once with an F-1 visa and once with a B-2 visa. What are my odds of getting a B-2 visa?

    1. Raphael: Sounds like your odds of proving nonimmigrant intent have improved. Still, the consular officer’s decision will be based on the “totality of the circumstances,” most of which are unknown to me at this point. You may want to consult with our firm or another immigration attorney to evaluate your odds.

  6. Hi: I have a green card. My wife and child are in India, and I plan to file I-130s on their behalf. Can they apply for visitors visas then upon arrival in the U.S. file with USCIS Forms I-485, Applications to Adjust Status?

  7. I’m a US citizen. I filed an I-130 for my Canadian husband 4 months ago. We want to move from Canada to the States in a few months but the application has not yet been approved. Is that allowed?

    1. Canadians don’t need visas to visit the U.S. But if he applies at a port of entry for authorization to enter as a visitor, he would be denied if CBP determines he really intends to “move” to the U.S. See the above paragraph on The Requirement of Nonimmigrant Intent.

  8. Hello,

    thank you for the helpful article! I just want to make sure about our case, even though it sounds like the answer is pretty straightforward, still…. :

    I am a German citizen, my wife is American and our small son has both citizenships. My wife filed the I-130 form back in April, we received the notification that the form had reached its destination at the Frankfurt Consulate, but nothing more so far, so the case is still pending.

    My wife will soon start Law school in the US and move with our son from Germany, where we currently live. We had initially planned for me to just come with them to the US on the ESTA program and wait there until the visa appointment takes place in Frankfurt (provided it does not take longer than 90 days). But from reading your article and others it sounds like this would not be a good idea – am I right about this?

    Thanks in advance for any help!! It is much appreciated.

    As an aside (not sure if you have any knowledge about that): Do you have an idea about how long we can still expect the whole process to take on average, having filed in Frankfurt, Germany? One finds quite conflicting information on the internet about this.

    Thanks and best regards

    Peter

    1. Peter: ESTA can be used to visit the U.S. while an immigrant visa application is pending, if you meet all requirements for admission. Also, I do think you should contact the U.S. Consulate in Frankfurt because it’s unusual for them to have an applicant’s file for months without contacting them.

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