It is absolutely possible for a foreign spouse to visit their partner in the United States while awaiting their green card application.
If you are a foreign spouse, you may apply to enter the United States via a tourist visa if you have a pending I-130 petition, and wish to go back to your home country after the visit. Another option would be to apply for a K-3 visa.
The K-3 visa is intended for a foreign spouse who would like to await the approval of their green card application while in the U.S. This article will help you understand both options prior to deciding the type of visa to apply for.
A tourist visa is a nonimmigrant visa that allows foreign nationals to enter the U.S. and stay temporarily for purposes of business (B1), tourism (B2), or both (B1/B2). A foreign spouse may enter the United States as a tourist, planning to stay for a short period of time before returning to their home country.
The biggest challenge for this type of visa application is to convince the immigration officers that they would indeed leave the United States before their visa expires. A nonimmigrant may need to answer a few questions to the Customs and Border Protection (CBP) agent at the port of entry prior to admission into the United States.
The Customs and Border Protection (CBP) agent would want to know why you are visiting the U.S. They would also want to be assured that the tourist plans to stay in the U.S. for the stipulated period of time with no intentions of extending their stay. If the CBP agent is convinced that the tourist’s intentions are clear, they may approve their entry into the United States.
A tourist who has a spouse in the U.S. may be suspected to have intentions of staying in the U.S. beyond the provided deadline. Whether you have a pending I-130 petition or not, having a spouse in the U.S. may give the immigration officials more reasons for further investigation into the intentions of your visit. Here is how to be prepared for such situations.
A Spouse Tourist With A Pending I-130 Petition
Form I-130 is the first step in the application for a marriage-based green card and is normally filed by the U.S. citizen spouse or green card holder, on behalf of the foreign spouse. It takes between 23-32 months to complete the marriage green card application.
For some couples, this waiting time may be too long. A green card gives lawful permanent resident status to a foreign national in the U.S. This means that the immigrant can live and work anywhere in the country. A foreigner is still regarded as such until they receive lawful permanent residence status, despite having an active green card application.
For this reason, such a tourist must have sufficient evidence to prove to the immigration officers that they would go back to their country after their stay in the U.S. has expired.
Here are some examples of documents that a visiting spouse may provide at the port of entry to prove their nonimmigrant intent:
Strong Financial Ties With The Home Country
If you own property or business in your home country, you may provide the CBP agent with evidence that shows ownership of such assets. These may include:
- Deeds and titles of the property
- Registration papers and certificates
- Financial statements from the business
Strong Family In The Home Country
Family members such as children and parents of the immigrant spouse may be used to prove that they have a connection with their home country. Submitted documents may include the following:
- Birth certificate of the children
- Adoption papers in case of adopted children
- Family photos
If you prove that you a have stable and well-paying job that you would be going back to at the end of your trip, then the immigration officer may be convinced of your non-immigrant intent. Under this category, you may provide the following as proof:
- A letter from the employer that you hold such a position, and its importance
- Your pay stubs to prove that you actually hold the job position
Your Visa And Immigration History
This includes a good immigration history showing that you repeatedly abide by the rules of the visas given to you. If you traveled to another country and returned to your own within the required time frame, then the interviewing officer may find genuine reasons to let you enter the United States. The visas stamped in your passport, including your old passport, may be enough proof.
A Spouse Tourist Without A Pending I-130 Petition
An immigrant spouse can adjust their status and apply for a marriage-based green card once they are admitted into the United States. However, the CBP agent would need to be convinced that the immigrants do not intend to skip the I-130 petition process which may take too long to be approved.
It is always a great idea to remain honest about having a spouse in the United States despite the tough scrutiny that you may be subjected to at the port of entry. Misrepresentation of such information may not only deny you entry into the U.S. but also jeopardize your future marriage-based green card application. The best thing to do is to prove to the officers that you have genuine and reliable reasons to go back to your home country after the visit. Here are some solid reasons that you may use:
Education Ties To Your Home Country
If you are enrolled in a school in your home country, such as a university or college, this may be good reason enough for you to consider going back after your stay in the United States. The education commitment must show evidence that stops you from permanently staying away from the home country. Such evidence may include evidence of continuing academic research that will enable you to attain your final certificate.
Strong Employment Ties To The Home Country
If you have a reliable job in your home country, you may use that as proof of non-immigrant intent. You will need a letter from your employer that states your position in the company. The letter may also state that the employer is aware of your travel and expected return back to work.
A Confirmed Travel Plan
A comprehensive travel plan that shows an immigrant’s date of return to their country and a paid return ticket may convince the CBP agent of your non-immigrant intent. Such information shows that you have a clear plan for your adventure in the U.S. and that you have intentions to return to your home country thereafter.
As a tourist, you are not allowed to accept any job offers in the U.S. or apply for such opportunities. Therefore, you may need to prove that you are financially stable and capable of taking care of yourself while touring the U.S. This kind of information may be vital in the decision to admit you into the United States.
Reasons For Tourist Visa Denial For A Foreign Spouse
The decision of whether to deny or award a person with a U.S. visa is discretely known to the immigration services. However, there are a few obvious factors that may make it harder for you to get a U.S. visa. Here are some examples:
Having Other Relatives In The United States
A person who has stronger family ties in the U.S., especially close relatives such as parents, may be subjected to more investigations to prove their non-immigrant intent to the immigration officers. The CBP agent or the immigration officer may believe that your visit to the U.S. may be intended to reunite with your family.
The USCIS keeps records of tourist trips into and out of the United States. They preserve this information on a document called the I-94 travel record. If this record shows that a tourist violated any of the immigration rules, including exceeding their stay in the United States during a visit, their chances of re-admission into the country may reduce. On the other hand, a clean travel record increases the chances of such an immigrant gaining entry into the U.S.
The Immigrant’s Home Country
Some countries have been marked to have high rates of violation of immigration laws. As a result, immigration officials are extra keen when evaluating visitors from such countries. If the immigration officer finds reasons to believe that the visitor may not leave the United States at the right time, they may be denied entry.
How To Prepare For Your Tourist Visa Application As An Immigrant Spouse
The visitor’s visa application is a simple process that the immigrant spouse can complete in three easy steps. The first step is to file the DS-160 Form Online Nonimmigrant Visa Application. After filing this form and paying the required filing fees, the applicant must print the confirmation page of the online application to bring to their interview. The applicant will also upload their photo in accordance with the standard photo requirements of the application.
The second step is to schedule an interview with the U.S. consulate or embassy in your home country. If you apply for this interview outside your country of origin, it may be difficult to get approval for the visa.
The third step is to prepare for the interview. At this stage, you need to assemble the required documents and supporting documents for your visa application. The required documents are:
- A valid passport
- The DS-160 confirmation page
- The receipt for the application
- Passport photo if you were unable to upload your photo during the online visa application process
The following information may be required to verify the purpose of your visit:
- Documents that show the purpose of your trip
- Documents showing when you intend to leave the U.S.
- Evidence of financial ability to cater for yourself while in the United States
- Evidence of ties to your home country
Ultimately, the applicant must have sufficient proof of the following information while making their visa application:
- Their intention to visit the U.S. only for a short time
- They are financially capable of supporting themselves during their visit
- Their intention is to leave the United States at a date not later than the provided deadline
Visa Waiver Program
A tourist may also enter the US using the Visa Waiver Program. Most citizens of the participating countries of the program may be allowed entry into the U.S. as visitors or for business reasons only if they plan to stay up to 90 days. Within 90 days, the visitor must complete their visit and plan to travel back to their country. An immigrant spouse from the participating countries may visit their spouses as long as they abide by the 90-day rule.
Eligibility For The Visa Waiver Program
The first eligibility requirement is that the visitor must be a citizen of the participating country to be approved for the visa waiver program. Check out this list of countries participating in the visa waiver program to find out if your country is part of it.
The other eligibility requirement is that the visitor’s reason for visiting must be in line with those listed under the visitor (B) visa. In this case, an immigrant spouse may indicate that they would like to visit their spouse for a short period of time. The alien spouse will still need to provide evidence that they will leave the U.S. once their time expires. They may also need to provide evidence of strong ties to their home country and financial ability to support themselves once they enter the United States.
The tourist who wishes to travel under the (Visa Waiver Program) VWP must have a confirmation or authorization from the Electronic System of Travel Authorization (ESTA). The system determines whether the applicant is eligible for the program, which may be valid for two years after authorization.
What If The Visiting Foreign Spouse Changes Their Mind About Leaving The United States When The Visa Expires?
A visiting spouse under a nonimmigrant visa, such as a tourist visa, may decide to extend their stay in the U.S. The spouse must prove to the USCIS officers that they have genuine reasons to extend their visit despite their initial intentions to go back to their country of origin. Health-related concerns of the U.S citizen spouse are a good example of a genuine reason.
The immigrant spouse may apply for the adjustment of status by filing Form I-485 to the USCIS. The U.S. citizen spouse will also need to file Form I-130 Petition for Alien Relative. These two applications can be filed concurrently. If the application process is successful, the immigrant spouse will gain lawful permanent resident status, which allows them to live in the U.S. permanently.
Abiding By The 90-Day Rule
A foreign spouse who decides to adjust their status to that of a permanent resident after entering the U.S. with a tourist visa will be subjected to a 90-day rule provided by the USCIS. This rule gives immigration officials enough time to carefully look into the green card application to establish the eligibility of the applicant.
The USCIS will seek to establish whether the applicant violated any immigration rules during their first 90 days in the country. Some of the violations include the following:
- Unlawfully engaging in employment in the U.S. during that period
- Unlawfully studying in the U.S. during that period
- Getting married to a U.S. citizen or a green card holder during that time
- Filing for a green card within the 90 days
The U.S. Citizenship and Immigration Services may declare that your motive for visiting the U.S. was misrepresented. If that happens, you may not be eligible to adjust your status. On the other hand, if none of these rules were violated, you may stand a higher chance of being approved. However, it is worth noting that abiding by the 90-day rule does not necessarily guarantee a successful green card application.
The K-3 Visa
The K-3 visa is meant for an immigrant spouse of a U.S citizen with an active green card application. The visa allows the foreign spouse to join their partner in the U.S. while they await their lawful permanent resident status. Unlike the tourist visa, the K-3 visa applicant has clear intentions of not only visiting their spouse but also staying in the U.S. as they await their green card. This would be a better choice of visa for immigrant spouses with green card applications already underway.