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. 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.
- 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.
- 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. 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. 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.
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.
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.
- 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.”) ↑
- 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-). ↑
- See INA § 101(a)(33) (defining “residence”). ↑
- 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. ↑
- INA § 212(a)(6)(C). ↑
- INA §212(a)(7). ↑
- See INA § 235(b)(1). ↑