I-130 applicant visit to U.S. on VWP

tomandsilke · January 16, 2008

Two questions

1. Can a person who has submitted a I-130 form visit the U.S. under the VWP?

2. If they would happen to be denied entry into the U.S. can this affect the outcome of their visa application process.

My wife is a German national, I am a U.S. citizen. We have called the U.S. Embassy in Germany and were told she would not be allowed entry by customs and that it could hurt her application. I believe we were mis-informed and the result is that I now have a wife that refuses to fly to the U.S. for our 3 week vacation. Please note that my question is not whether customs can deny her entry. I understand they can deny anyone entry.

On the U.S. Embassy in Germany's website (and other embassy websites) it states that this is possible. Here is how it reads:

Can I travel to the United States while my application for an immigrant or fiancé(e) visa is being processed?

If you intend taking up permanent residence in the U.S., you are required to wait until the immigrant or fiancé(e) visa is issued. You cannot reside in the U.S. on a tourist visa or visa free under the Visa Waiver Program while waiting the issuance of an immigrant or fiancé (e) visa. However, if you wish to make a temporary visit at the end of which you will return to your permanent residence outside the United States, you may travel on a tourist (B-2) visa, or visa free under the Visa Waiver Program, if qualified.

When traveling to the U.S. either with a visa or visa free under the Visa Waiver Program, you should be sure to carry with you for presentation to an immigration inspector evidence of your residence outside the U.S. If the immigration inspector is not convinced that you are a bona fide visitor for pleasure, you will be denied entry into the United States.

C and J · January 16, 2008

Yes, a beneficiary can travel to the US on the visa waiver program while the I130/I129F is being processed. I have done it myself.

What your wife must be prepared for, is to show as many ties to Germany as possible (examples could include: return ticket, letter from employer to state the day she is due to return to work and that she is still in permanent employment, the I130 NOA1 or NOA2 if you have them to show you are applying the correct way etc etc).

There is the possibility that she could be denied at the point of entry, should they decide the evidence is not great enough but there should be no repurcussions to this at the eventual visa interview. The people at the embassy probably see quite a few people who have been put in this situation because of decisions made by officers at the airport.