Already married but spouse has B1/B2 visa

[kd2000 0]

A friend of mine is in dilema. He is US citizen and on his last trip to India got married. The girl has B1/B2 visa and has visited US couple of times already in the past. Can she enter in US on B1/B2 visa and file the paper work I-130 and I-485 can she wait here or does she need to go back to India ? What is best route here ? or should they get re-married ? Do he need to worry about 30-60 day rule or something ? Thanks alot in advance.

[RickD 0]

Because your friend´s wife will now be considered an impending immigrant, she will probably not be allowed into the US if an I-130 has been filed before she trie to enter the US. If she enters on the B1/B2 before the I-130 if filed and tries to adjust status, there is a good chance that it will be looked at as visa fraud because USCIS will most likely assume the real intent of the visit was to immigrate and not just too visit.

She could visit on the B1/B2 before the I-130 is filed (for however long her visit is approved for) and then go back to India to complete the process. This would allow the couple to be together during the early part of the process but she would have to leave before her visit expired. As far as I can tell, there are really no safe shortcuts to the process.

RickD

[kd2000 0]

RickD, thanks a lot for your reply.

Just confused, why would it be considerd as visa fraud ? Everything can be looked as fraud, but does not mean it is a fraud ? is it ? It is USCIS job to treat everyting suspiciosuly anyways! However the reality and the truth is that they

are married.

I-130 has not been filed yet. During the filing of 130 in US, if USCIS says she needs to go back and wait in her own country, she will. But if they say she can instead stay here and wait that would be nice. I am sure this is not

uncommon. Of course she is now a spouse of a US citizen and intent will always be to immigrate and stay with their spouse. Is anything illegal about it ?

Only the beneficial thing here is that person has a B1/B2 visa. It does provide an option to file the

paperwork in US and wait here, so would like to know some real experiences if anyone has gone thru

something similar ?

Typically B1/B2 is good for 120 days. I read somewhere there is some 30-60 day rule or something. Not so clear

about it! So how long a person should wait until they file I-130 when the spouse is already here on a B1/B2 visa ?

Thanks again in advance.

Edited April 10, 2009 by kd2000

[Jon&Lindsey 0]

There is nothing illegal about her being married to a USC and wanting to live here, the illlegal part is using a B1/B2 visitors visa for permanently moving to the US, and not for its intended purpose of visiting temporarily. To do things legally you need the correct visa for your purpose. When anyone enters with a visitor's visa, they will be questioned at the POE about their trip. So, she either tells the truth and says she intends to file for AOS and is therefore denied entry (as she only has a visitor's visa, not a visa for permanent immigration) or she lies and says she is just visiting, which is misrepresentation = fraud. Yes, it is possible that someone who is married enters the US to visit, then changes their minds and files for AOS, but if the intent to remain is there at entry (which it would be here), then that is fraud. At the interview (there will be an interview if not adjusting from K1) she may be asked about her intent, and the burden of proof is on the applicant to prove that there was no intent, not USCIS to prove that there was. Sure, she may not be asked, but if she is and has no proof (since she did intend to stay), then she will be denied and possibly banned. The 30/60 thing refers to how long people who enter on visitors visas should wait before getting married/filing, in order to convince USCIS that it was not pre-planned. It is quoted a lot but I have read others who say that it is a myth and every case will be judged on its own merits (though to me it does look suspicious if it's done very soon after entry). Like Rick said, there are no shortcuts. If they file for the K3, at least since she has the B1/B2 she should be able to visit her husband while they are waiting - she should just take with her proof to show at the POE that she intends to return home (eg letter from employer, mortgage/rental agreements etc) before her authorized stay expires.

[Bobby+Umit 161]

A friend of mine is in dilema. He is US citizen and on his last trip to India got married. The girl has B1/B2 visa and has visited US couple of times already in the past. Can she enter in US on B1/B2 visa and file the paper work I-130 and I-485 can she wait here or does she need to go back to India ? What is best route here ? or should they get re-married ? Do he need to worry about 30-60 day rule or something ? Thanks alot in advance.

The girl can visit, since it is a valid visa. She can stay as long as the I-94 is valid.

She should not attempt to AOS, as mentioned above, she would have a hard time to convince them she "changed" her mind to AOS instead of visiting.

Getting "re-married" will not change the fact that they are married. (and that would be fraud in itself).

30/60 rule - that is what people attempting to get around the system say to do. They figure the longer you wait, the better your case will pass the "fraud" test.

Your friend can attempt it, but if caught, expect a ban. Further info... FIB

I know I would not risk it. Each to their own thing I suppose.

[I Miss Her 0]

A friend of mine is in dilema. He is US citizen and on his last trip to India got married. The girl has B1/B2 visa and has visited US couple of times already in the past. Can she enter in US on B1/B2 visa and file the paper work I-130 and I-485 can she wait here or does she need to go back to India ? What is best route here ? or should they get re-married ? Do he need to worry about 30-60 day rule or something ? Thanks alot in advance.

Immigration and Nationality Act, Sec. 245. [8 U.S.C. 1255] provide basic legal authority for adjustment of status.

What you want to do it is not as per immigration law. If a person enters, the United States as a visitor, with the obvious intention of applying for immigrant status, their adjustment of status application will denied in the exercise of discretion.

[Reba 2]

They may not even let her visit, even though she has a valid B2 visa. When she got the visa, she wasn't married to a USC, now she is, they have every right to deny her entry, based on insignificant ties to home country.

[kd2000 0]

Thanks everyone for your replies. It does help. I think safe approach would be enter US with B1/B2 with intent to visit

and go back after 90 or 120 or may be even apply for extension. Actually the intent here is to visit her spouse.

File for the 130 and may be K3. However there is question in I-130 asking about your spouse if he/she is already in US ? What would one enter for that ?

The following is from USCIS website direclty -

What are you thoughts ? This sections is under "How Do I Bring My Spouse (Husband or Wife) to Live in the United States?" If you read the second sentence, it does 'not' appear to be illegal to file for I-130 and I-485.

However there is always a risk of rejection, and getting stuck into the unncessary red tape delay!

Information for Citizens

If you are a U.S. citizen, your spouse is considered an immediate relative and is immediately eligible for an immigrant visa if your petition is approved. Generally, if your spouse is in the U.S. (through a lawful admission or parole) at the time you file the Form I-130, Petition for Alien Relative, your spouse may file a Form I-485, Application to Register Permanent Residence or to Adjust Status at the same time. For more information, your spouse should refer to How Do I Become a Lawful Permanent Resident While In the United States? If he or she is outside the U.S., your spouse will need to go to the nearest U.S. consulate to apply for an immigrant visa.

[canadian_wife 1,826]

Thoughts will still be the same. Misuse of a tourist visa, IE to enter with intent to stay and not just 'visit' as the visa was intended for, is considered fraud.

Ask your 'friend' if it is worth a ban from the US to attempt to adjust status from a tourist visa with clear intent to lie at the boarder and misuse the tourist visa.

[Jon&Lindsey 0]

Thanks everyone for your replies. It does help. I think safe approach would be enter US with B1/B2 with intent to visit

and go back after 90 or 120 or may be even apply for extension. Actually the intent here is to visit her spouse.

File for the 130 and may be K3. However there is question in I-130 asking about your spouse if he/she is already in US ? What would one enter for that ?

The following is from USCIS website direclty -

What are you thoughts ? This sections is under "How Do I Bring My Spouse (Husband or Wife) to Live in the United States?" If you read the second sentence, it does 'not' appear to be illegal to file for I-130 and I-485.

However there is always a risk of rejection, and getting stuck into the unncessary red tape delay!

Information for Citizens

If you are a U.S. citizen, your spouse is considered an immediate relative and is immediately eligible for an immigrant visa if your petition is approved. Generally, if your spouse is in the U.S. (through a lawful admission or parole) at the time you file the Form I-130, Petition for Alien Relative, your spouse may file a Form I-485, Application to Register Permanent Residence or to Adjust Status at the same time. For more information, your spouse should refer to How Do I Become a Lawful Permanent Resident While In the United States? If he or she is outside the U.S., your spouse will need to go to the nearest U.S. consulate to apply for an immigrant visa.

We are not saying that it is illegal to file the forms. The problem is the fraud involved in misrepresenting at the POE and using a non-immigrant, visitor's visa when the true intention is permanent immigration, and this issue could cause denial of AOS. Entering with a visitor's visa with intent to stay is fraud.

[Reba 2]

Information for Citizens

If you are a U.S. citizen, your spouse is considered an immediate relative and is immediately eligible for an immigrant visa if your petition is approved. Generally, if your spouse is in the U.S. (through a lawful admission or parole) at the time you file the Form I-130, Petition for Alien Relative, your spouse may file a Form I-485, Application to Register Permanent Residence or to Adjust Status at the same time. For more information, your spouse should refer to How Do I Become a Lawful Permanent Resident While In the United States? If he or she is outside the U.S., your spouse will need to go to the nearest U.S. consulate to apply for an immigrant visa.

The I-485 would only be allowed if the foreign half had entered the US on a visitor status and they were not yet married but decided on a whim to get married during that visit. As they are already married in India this option is not available to them.

[Bobby+Umit 161]

Thanks everyone for your replies. It does help. I think safe approach would be enter US with B1/B2 with intent to visit

and go back after 90 or 120 or may be even apply for extension. Actually the intent here is to visit her spouse.

File for the 130 and may be K3. However there is question in I-130 asking about your spouse if he/she is already in US ? What would one enter for that ?

The following is from USCIS website direclty -

What are you thoughts ? This sections is under "How Do I Bring My Spouse (Husband or Wife) to Live in the United States?" If you read the second sentence, it does 'not' appear to be illegal to file for I-130 and I-485.

However there is always a risk of rejection, and getting stuck into the unncessary red tape delay!

Information for Citizens

If you are a U.S. citizen, your spouse is considered an immediate relative and is immediately eligible for an immigrant visa if your petition is approved. Generally, if your spouse is in the U.S. (through a lawful admission or parole) at the time you file the Form I-130, Petition for Alien Relative, your spouse may file a Form I-485, Application to Register Permanent Residence or to Adjust Status at the same time. For more information, your spouse should refer to How Do I Become a Lawful Permanent Resident While In the United States? If he or she is outside the U.S., your spouse will need to go to the nearest U.S. consulate to apply for an immigrant visa.

Have your friend try this.

Come to the POE and when they ask her the reason for "visit" on a visitors visa- have her tell them, "I am coming to see my USC husband, and we want to AOS using the 485/130 sometime later..."

Betcha she won't be able to make it pass the POE, but...

In the unlikely event they allow her to pass after saying that, then she would be here lawfully, since she told her intent at POE and was allowed in, and then she could attempt to AOS, legally.

It all has to do with intent. Since it seems you are looking for a way around immigration law prior to coming to the US for your friend, (IE use a visitors visa to attempt to AOS), you are attempting to bypass immigration law/rules because your friends intent is not to visit, but to visit and attempt AOS.

As mentioned above, if she wasn't married, came here to just visit, after some time in the US, she decides to get married, then would be able to attempt to AOS.

It's not a given by the way, you still have to prove your intent.

Some people make it through, some don't.

Good luck to your friend, please update us to what happens if she comes her.

[pushbrk 13,053]

Thanks everyone for your replies. It does help. I think safe approach would be enter US with B1/B2 with intent to visit

and go back after 90 or 120 or may be even apply for extension. Actually the intent here is to visit her spouse.

File for the 130 and may be K3. However there is question in I-130 asking about your spouse if he/she is already in US ? What would one enter for that ?

The following is from USCIS website direclty -

What are you thoughts ? This sections is under "How Do I Bring My Spouse (Husband or Wife) to Live in the United States?" If you read the second sentence, it does 'not' appear to be illegal to file for I-130 and I-485.

However there is always a risk of rejection, and getting stuck into the unncessary red tape delay!

Information for Citizens

If you are a U.S. citizen, your spouse is considered an immediate relative and is immediately eligible for an immigrant visa if your petition is approved. Generally, if your spouse is in the U.S. (through a lawful admission or parole) at the time you file the Form I-130, Petition for Alien Relative, your spouse may file a Form I-485, Application to Register Permanent Residence or to Adjust Status at the same time. For more information, your spouse should refer to How Do I Become a Lawful Permanent Resident While In the United States? If he or she is outside the U.S., your spouse will need to go to the nearest U.S. consulate to apply for an immigrant visa.

Have your friend try this.

Come to the POE and when they ask her the reason for "visit" on a visitors visa- have her tell them, "I am coming to see my USC husband, and we want to AOS using the 485/130 sometime later..."

Betcha she won't be able to make it pass the POE, but...

In the unlikely event they allow her to pass after saying that, then she would be here lawfully, since she told her intent at POE and was allowed in, and then she could attempt to AOS, legally.

It all has to do with intent. Since it seems you are looking for a way around immigration law prior to coming to the US for your friend, (IE use a visitors visa to attempt to AOS), you are attempting to bypass immigration law/rules because your friends intent is not to visit, but to visit and attempt AOS.

As mentioned above, if she wasn't married, came here to just visit, after some time in the US, she decides to get married, then would be able to attempt to AOS.

It's not a given by the way, you still have to prove your intent.

Some people make it through, some don't.

Good luck to your friend, please update us to what happens if she comes her.

The intent rules the day whether admitted or not. Declaring illegal intent doesn't make the subsequent illegal action legal.

[Bobby+Umit 161]

Thanks everyone for your replies. It does help. I think safe approach would be enter US with B1/B2 with intent to visit

and go back after 90 or 120 or may be even apply for extension. Actually the intent here is to visit her spouse.

File for the 130 and may be K3. However there is question in I-130 asking about your spouse if he/she is already in US ? What would one enter for that ?

The following is from USCIS website direclty -

What are you thoughts ? This sections is under "How Do I Bring My Spouse (Husband or Wife) to Live in the United States?" If you read the second sentence, it does 'not' appear to be illegal to file for I-130 and I-485.

However there is always a risk of rejection, and getting stuck into the unncessary red tape delay!

Information for Citizens

If you are a U.S. citizen, your spouse is considered an immediate relative and is immediately eligible for an immigrant visa if your petition is approved. Generally, if your spouse is in the U.S. (through a lawful admission or parole) at the time you file the Form I-130, Petition for Alien Relative, your spouse may file a Form I-485, Application to Register Permanent Residence or to Adjust Status at the same time. For more information, your spouse should refer to How Do I Become a Lawful Permanent Resident While In the United States? If he or she is outside the U.S., your spouse will need to go to the nearest U.S. consulate to apply for an immigrant visa.

Have your friend try this.

Come to the POE and when they ask her the reason for "visit" on a visitors visa- have her tell them, "I am coming to see my USC husband, and we want to AOS using the 485/130 sometime later..."

Betcha she won't be able to make it pass the POE, but...

In the unlikely event they allow her to pass after saying that, then she would be here lawfully, since she told her intent at POE and was allowed in, and then she could attempt to AOS, legally.

It all has to do with intent. Since it seems you are looking for a way around immigration law prior to coming to the US for your friend, (IE use a visitors visa to attempt to AOS), you are attempting to bypass immigration law/rules because your friends intent is not to visit, but to visit and attempt AOS.

As mentioned above, if she wasn't married, came here to just visit, after some time in the US, she decides to get married, then would be able to attempt to AOS.

It's not a given by the way, you still have to prove your intent.

Some people make it through, some don't.

Good luck to your friend, please update us to what happens if she comes her.

The intent rules the day whether admitted or not. Declaring illegal intent doesn't make the subsequent illegal action legal.

Your correct, I should of worded that better.

(She wouldn't be in trouble for "lying" at the POE (saying she was visiting. She could truthfully say "I told them I was getting married and AOS")

thanks for keeping me honest

[kd2000 0]

What about all the H1B workers and their spouses / children etc they bring them immediately. All of them end up being immigrants down the road. The H1B person and their spouse / children all are granted visa with the intent that they will go back as well right ? There is no wait at all! They come in at the same time, no separation.

I think there is a legimate reason for the second sentence clause "if the spouse is already in US" above, because I believe it happens and the procedure to be followed is to apply for AOS. How else would those spouses etc have entered US ? Obviously via some visa legally.

I personally know few people who have filed extension of stay and AOS for their visiting parents.

Of course know ton of H1B workers as well who have gone thru the process of AOS.

Thanks again.