What about tourist visa while waiting?

[melusine84 0]

Hi everyone,

My husband and I are going to do DCF filing (submitting next week). However, we have a young son whose grandparents want to see him (well, all 3 of us) in the US over the holidays! Does anyone know if applying for a tourist visa will cause any problems with the I-130 or visa versa? I guess what I'm worried about is the fact you are basically guilty of wanting to stay in the US until you can prove differently, and that it will be tough to get a tourist visa now... Once all the paperwork is complete, is he only allowed to go to the US once he is ready to start living there? (All that Point of Entry stuff...) That is a bit more ahead in our plans than December...

[Penguin_ie 5,996]

You are unlikely to get a tourist visa with a pending I-130, but a tourist visa denial isn't going to hurt the spousal visa. Also, if you are applying in a week, there is a good chance that you may have the visa by Christmas with DCF.

[melusine84 0]

The problem being, we´re not ready to stay in the US by Christmas. Would he be able to enter and return to his home country a few months, or not? We have a pending legal case that should rap up sometime in the next year, but not by December I'm thinking, not to mention selling off everything we own here in Paraguay...

[Penguin_ie 5,996]

Yes, he will get a temp greencard stamp in his passport when he enters, so he could turn around the next day and go back to Paraguay if he wants. However, to remain a greencard holder, he must be resident in the USA (ie spend more than half of any year in the USA).

[LBeachey 45]

However, to remain a greencard holder, he must be resident in the USA (ie spend more than half of any year in the USA).

Is this documented anywhere on a US gov't site or is just a rule-of-thumb? And is this a calendar year or any 365 days?

[payxibka 10,047]

Is this documented anywhere on a US gov't site or is just a rule-of-thumb? And is this a calendar year or any 365 days?

google "maintaining permanent residency"

[LBeachey 45]

google "maintaining permanent residency"

Thanks, I have researched this subject a lot. And any google search gives more rule-of-thumb than hard rules. The first link that comes up from your sugesstion:

Abandoning Permanent Resident Status

You may be found to have abandoned your permanent resident status if you:

Move to another country intending to live there permanently

Remain outside of the United States for more than 1 year without obtaining a reentry permit or returning resident visa. However, in determining whether your status has been abandoned, any length of absence from the United States may be considered, even if less than 1 year

Remain outside of the United States for more than 2 years after issuance of a reentry permit without obtaining a returning resident visa. However, in determining whether your status has been abandoned any length of absence from the United States may be considered, even if less than 1 year

Fail to file income tax returns while living outside of the United States for any period

Declare yourself a “nonimmigrant” on your tax returns

The bold would indicate that even being here half the year could be interpreted as abandoning status (though one would think there would be have to be other incriminating factors)

I had never seen where spending more than half the year in the US (i.e >183 days) is required or even a guideline. That is my specific question.

[Penguin_ie 5,996]

There are no hard and fast rules for minimum time in the USA, it is up to the CBP officer as long as it's less than one year. But if you spend more than half the time in a rolling year outside the USA, it is up to you to prove you have maintained residency in the USA (bills, lease or home owner ship etc). So yes, if you spend between 183 and 364 days outside, you may well be let back in- especially the first time this happens- but the more time you spend outside the less chance of being let back in, especially if you have not yet established yourself in the USA- ie enter on a immigrant visa and leave again within a couple of weeks, then spend 364 days outside= very good chance of greencard being taken away.

Edited July 30, 2011 by Penguin_ie