Apply for spousal visa or continue on visitor visa for the usa

[christeen 966]

Just because someone is married to a USC does NOT mean they MUST get a green card... My husband used the VWP and kept his C1/D crew member visa for 7 years (and renewed his C1/D twice during that period) without ever applying for green card (because it was not his intent to remain in the USA due to work)... When the time came for him to move to the USA, we filed the IR1 as normal... Anytime he entered, he explained that he works on a ship and had no intention at this time to live in the USA because of his job and he was never turned away...

[aaron2020 11,651]

Yes, attorney's can be scare mongers, but if there is any risk at all, the OP deserves to know it.

There's also a chance that I will get hit by a bus today.

If you were trying to sell me your bus accident insurance, how much of a danger would you emphasize to me to get me to buy?

In much the same way, your lawyer played up the danger to get you to buy.

[sara..... 371]

i think that any and all information your so kind to give will help them decide on what they should do if anyone has anything else to add it would be greatly appreciated

sara

[pushbrk 13,166]

...a risk of not being allowed in. Attorneys are scare-mongers.

Correct. That's the risk. You only risk a finding of fraud if you commit fraud. Visiting the USA using a tourist visa, when married to a US Citizen is NOT fraud. Always tell the truth to immigration officers and on immigration forms.

[slvrfx576 15]

The consensus here seems to be that the spouse in this case can come on his visitor's visa. There also seems to be a consensus that the spouse will not be able to renew his visitor visa in 2 years because he will have to disclose his marriage to a USC and will therefore have a presumed immigrant intent and therefore not qualify for a non-immigrant visa. Is this not a contradiction in itself ? So if you already have a visitor's visa you can use it, but if you were to apply for one you would not get it.

I agree that he should be able to come to visit, but according to the law he must "establish to the satisfaction of the Consular Officer, or at the time of application for admission, that he is entitled to non-immigrant status". So he must convince the agent at POE that he is entitled to non-immigrant status. And do not be so naïve as to think that a male Egyptian Citizen, working in Iraq, might not be subject to a little "extra scrutiny" at entry. He does not have to convince a court of law or a jury of his peers....just one CPB agent upon entry. The law presumes immigrant intent unless the alien can prove otherwise to just one person. That is the risk.

My advice to Sara would be to have the spouse come on his visitor visa. But be mindful of the small risk involved and have the spouse carry irrefutable evidence of his non-immigrant intent. Then 6 months before his visitor visa is to expire, they should start the I-130 process for a CR1 visa. If approved at the 9 month mark, (2 yrs 3 months from now) they then would have 6 months for him to enter the US...only needs to enter for a short time and then he has 6 months to go back to finish his 3 year work commitment, and return to the US without a problem.

BTW, I did not end up using an attorney for my visa journey. I give a lot of credit to VJ for making me confident enough to undertake this without an attorney. So far everything is going smoothly, although agonizingly slow...as you all know. My wife decided to remain in Bulgaria while we undergo this process, in part because we did not want to risk her using her visitor visa but there were other reasons as well. As a side note, I was just approved for a long term Visa for Bulgaria by their Consulate here in Chicago (where we have at least 1 bus accident daily) !!!! Much easier to get than the US visa for my wife !!!! So soon I will be there to go through the interview process with my wife, and not have to worry about my Bulgarian visitor's visa expiring.

[pushbrk 13,166]

The consensus here seems to be that the spouse in this case can come on his visitor's visa. There also seems to be a consensus that the spouse will not be able to renew his visitor visa in 2 years because he will have to disclose his marriage to a USC and will therefore have a presumed immigrant intent and therefore not qualify for a non-immigrant visa. Is this not a contradiction in itself ? So if you already have a visitor's visa you can use it, but if you were to apply for one you would not get it.

First, this time the consensus is correct but it would be unwise to count on a consensus. Do your own due diligence or trust somebody who has already done it. I said not to count on getting a new visa for the reason you quoted above. The context of my opinion had a lot to do with the "applicant" being Egyptian. My opinion would likely be different for a European, for example. With enough evidence of the lack of immigrant intent, there's a chance of obtaining a new visa. I just wouldn't count on it.

Yes, there's a correlatin between the qualifications for a visa and for entry but one key qualification for entry is having a previous entry of EXITS.

Edited July 27, 2013 by pushbrk

[himher 634]

If the couple is already married then it can be considered to be visa fraud to enter on a non-immigrant (visitor) visa. This is a gray area, subject to the interpretation of the CBP officer at the Port of Entry, but in my opinion is not worth the risk of a 10 year ban on entry to the US. If you want to risk the spouse entering on a visitor's visa be sure to have him bring proof of intent to return overseas....return flight ticket, proof of job overseas, proof of residence and long term ties to the country from which he is originating.

Strictly my opinion, but I doubt he would be able to get a new visitor's visa if he is married to a USC who is domiciled in the US.

Non-USC's visit their US spouses on visitors visas all the time. There is no "fraud" here. The key is to be up-front, be prepared to explain the situation, and accept the possibility that he may not be allowed to enter.

[Darnell 8,479]

how important is the work in Egypt ? if not so much, when compared to getting married and immigrating to the USA,

then

I suggest they file the I-130 after marriage, within that month,

then

when/if he wants to come to USA before the CR-1 is granted - he's got a tourist visa to use.

Then, when the CR-1 visa is granted, come to the USA within 6 months after issuance.

----

if the work in Egypt is more important than immigrating on a CR-1 visa, then those two folk should study and then file 1 year prior to the work rotation contract ending in Egypt.

[Cathi 5,794]

The consensus here seems to be that the spouse in this case can come on his visitor's visa. There also seems to be a consensus that the spouse will not be able to renew his visitor visa in 2 years because he will have to disclose his marriage to a USC and will therefore have a presumed immigrant intent and therefore not qualify for a non-immigrant visa. Is this not a contradiction in itself ? So if you already have a visitor's visa you can use it, but if you were to apply for one you would not get it.

I agree that he should be able to come to visit, but according to the law he must "establish to the satisfaction of the Consular Officer, or at the time of application for admission, that he is entitled to non-immigrant status". So he must convince the agent at POE that he is entitled to non-immigrant status. And do not be so naïve as to think that a male Egyptian Citizen, working in Iraq, might not be subject to a little "extra scrutiny" at entry. He does not have to convince a court of law or a jury of his peers....just one CPB agent upon entry. The law presumes immigrant intent unless the alien can prove otherwise to just one person. That is the risk.

My advice to Sara would be to have the spouse come on his visitor visa. But be mindful of the small risk involved and have the spouse carry irrefutable evidence of his non-immigrant intent. Then 6 months before his visitor visa is to expire, they should start the I-130 process for a CR1 visa. If approved at the 9 month mark, (2 yrs 3 months from now) they then would have 6 months for him to enter the US...only needs to enter for a short time and then he has 6 months to go back to finish his 3 year work commitment, and return to the US without a problem.

BTW, I did not end up using an attorney for my visa journey. I give a lot of credit to VJ for making me confident enough to undertake this without an attorney. So far everything is going smoothly, although agonizingly slow...as you all know. My wife decided to remain in Bulgaria while we undergo this process, in part because we did not want to risk her using her visitor visa but there were other reasons as well. As a side note, I was just approved for a long term Visa for Bulgaria by their Consulate here in Chicago (where we have at least 1 bus accident daily) !!!! Much easier to get than the US visa for my wife !!!! So soon I will be there to go through the interview process with my wife, and not have to worry about my Bulgarian visitor's visa expiring.

you need to stop...there is absolutely no fraud involved when visiting a spouse on a tourist visa as long as he doesn;t attempt to adjust status while here on the visitor visa. The OP didn;t even hint this would be the case. The OP MERELY asked when would be the BEST time for their friend to apply for a spouse visa. SMH why are you arguing when you're wrong?

Edited July 28, 2013 by mimolicious

[sara..... 371]

how important is the work in Egypt ? if not so much, when compared to getting married and immigrating to the USA,

then

I suggest they file the I-130 after marriage, within that month,

then

when/if he wants to come to USA before the CR-1 is granted - he's got a tourist visa to use.

Then, when the CR-1 visa is granted, come to the USA within 6 months after issuance.

----

if the work in Egypt is more important than immigrating on a CR-1 visa, then those two folk should study and then file 1 year prior to the work rotation contract ending in Egypt.

he works for a oil company based in the Texas ...........the work is in Iraq not Egypt.......at the end of his three year contract working in Iraq they will transfer him to the Texas......why he does not want to come on a work visa i have no idea have not asked them that but thats what it is.......

sara

[Darnell 8,479]

so, working is more important than immigrating on a spousal visa, yes?

[pushbrk 13,166]

Probably, yes, his career needs to be balanced with his life plan. The fact that he works for a US company makes a big difference regarding the chances of renewing the B1B2 visa. This couple has lots of options going forward. I would simply file the I-130 a year before the planned immigration to the USA and go forth with their life plan as it developes.