B-2 Visa after receiving NOA1

[entertained777 2]

Hi everyone,

New user here. I have a few questions. Can I apply for and visit my wife in the US on a B-2 Visa while i-130 is pending and going through its process?

Quick background.

I am Australian and my wife is American, we have been married for over 2 years. When i went to the USA to see her the first time I qualified for the VWP but ended up overstaying by 2 weeks (foolish i know!!). So if my research is right there is no way for me to get another VWP to return to the US?

We have been apart over 2 years due to fault of our own (not sending via registered mail that required a receipt) our 2!! applications for i-130 were never received and are just in limbo somewhere. Yes this is a lot of fault on our part for not doing due diligence (we feel like fools now for wasting the last 2 years).

Anyway, long story short, we are about to file for a 3rd time via registered couriered mail so we can get into the system and begin the process.

So my question is, due to 'probably'? now being able to get the VWP again can I apply for a B-2 visa after receive our NOA1 then visit her for 2 months? Is this legal? would i even be approved?

At the end of the day we do not want to do anything that will jeopardize our future. So if we have to wait in apart then so be it.

And lastly, am i correct in saying that filing the i-130 then turns into the IR-1 during the process and it is not something we specially file separate?

Sorry for all the questions. Any help is appreciated.

Thank you

Edited October 8, 2015 by entertained777

[Shauneg 762]

Very legal and there's no hindrance on your immigration case. Whether or not you get approved is up to the embassy just going to cost you a little money and time to try.

[entertained777 2]

Hi Shauneg,

Thank you for the reply.

Also, does anyone know. Since we are already married is it legal for me to go to the USA on a B-2 and then file my forms and stay in the US?

I think i read somewhere it is considered fraud if you visit the US with the intent to do this?

[Shauneg 762]

Hi Shauneg,

Thank you for the reply.

Also, does anyone know. Since we are already married is it legal for me to go to the USA on a B-2 and then file my forms and stay in the US?

I think i read somewhere it is considered fraud if you visit the US with the intent to do this?

You read right.

[mallafri76 1,012]

Yes, it's illegal to enter the US on e.g. VWP or tourist visa with the intent to immigrate, so that's a no go. Even though the behavior is excused if married to a USC for some reason?!?!

I mean this in the nicest way and I'm sure you're already kicking yourself for it but why would you mess up with the VWP like that?!?! Getting a B-2 during the visa process is pretty difficult, since you've already shown immigration intent. And since so many people commit visa fraud by entering the US with e.g. a B-2 visa or the VWP with the intent to stay, US immigrations are pretty strict when it comes to issuing visitors visas during the visa process. You're from a low fraud country though, so that you gives you at least a little chance of getting a B-2. No harm in trying for it, it won't affect your spousal visa.

[pushbrk 12,883]

Hi everyone,

New user here. I have a few questions. Can I apply for and visit my wife in the US on a B-2 Visa while i-130 is pending and going through its process?

Quick background.

I am Australian and my wife is American, we have been married for over 2 years. When i went to the USA to see her the first time I qualified for the VWP but ended up overstaying by 2 weeks (foolish i know!!). So if my research is right there is no way for me to get another VWP to return to the US?

We have been apart over 2 years due to fault of our own (not sending via registered mail that required a receipt) our 2!! applications for i-130 were never received and are just in limbo somewhere. Yes this is a lot of fault on our part for not doing due diligence (we feel like fools now for wasting the last 2 years).

Anyway, long story short, we are about to file for a 3rd time via registered couriered mail so we can get into the system and begin the process.

So my question is, due to 'probably'? now being able to get the VWP again can I apply for a B-2 visa after receive our NOA1 then visit her for 2 months? Is this legal? would i even be approved?

At the end of the day we do not want to do anything that will jeopardize our future. So if we have to wait in apart then so be it.

And lastly, am i correct in saying that filing the i-130 then turns into the IR-1 during the process and it is not something we specially file separate?

Sorry for all the questions. Any help is appreciated.

Thank you

You will probably be denied the B-2, not because of the previous overstay but because you now clearly have immigrant intent. Just being married to a US Citizen, particularly one who live in the USA, is enough indication of immigrant intent. Obviously, their decision would be correct, since you do intend to immigrate.

The I-130 doesn't "turn into" anything. Filing it, begins the immigrant visa process for a spouse. Because you will have been married more than two years when the visa is issued, the visa issued, will be category IR-1 as will be the status you are granted upon entering the USA using the IR-1 visa.

There's much more to the process than starting it. You're at the right place to learn what's coming next and how to prepare for it.

It is not illegal to visit your spouse during the process, but it is unlikely you will obtain a visa allowing you to do so.

[entertained777 2]

Yes, it's illegal to enter the US on e.g. VWP or tourist visa with the intent to immigrate, so that's a no go. Even though the behavior is excused if married to a USC for some reason?!?!

I mean this in the nicest way and I'm sure you're already kicking yourself for it but why would you mess up with the VWP like that?!?! Getting a B-2 during the visa process is pretty difficult, since you've already shown immigration intent. And since so many people commit visa fraud by entering the US with e.g. a B-2 visa or the VWP with the intent to stay, US immigrations are pretty strict when it comes to issuing visitors visas during the visa process. You're from a low fraud country though, so that you gives you at least a little chance of getting a B-2. No harm in trying for it, it won't affect your spousal visa.

Believe me i kick myself for it every day! I have no other excuse other than lack of knowledge and at the time we just wanted to stay together. It was a very foolish thing to do but live and learn i guess.

I guess I will apply for a B-2 visa if it does not affect my IR-1.

You will probably be denied the B-2, not because of the previous overstay but because you now clearly have immigrant intent. Just being married to a US Citizen, particularly one who live in the USA, is enough indication of immigrant intent. Obviously, their decision would be correct, since you do intend to immigrate.

The I-130 doesn't "turn into" anything. Filing it, begins the immigrant visa process for a spouse. Because you will have been married more than two years when the visa is issued, the visa issued, will be category IR-1 as will be the status you are granted upon entering the USA using the IR-1 visa.

There's much more to the process than starting it. You're at the right place to learn what's coming next and how to prepare for it.

It is not illegal to visit your spouse during the process, but it is unlikely you will obtain a visa allowing you to do so.

Thank you for the response. You are right I have been reading a lot yesterday and today on this forum and i have learned a lot. This forum is a Godsend for many people.

If i apply for a B-2 visa is the decision on my approval deny based on an interview so I can meet and talk to the person who makes the decision or is it all done in the background while i wait for a decision?

Thank you all the replies

[entertained777 2]

You will probably be denied the B-2, not because of the previous overstay but because you now clearly have immigrant intent. Just being married to a US Citizen, particularly one who live in the USA, is enough indication of immigrant intent. Obviously, their decision would be correct, since you do intend to immigrate.

The I-130 doesn't "turn into" anything. Filing it, begins the immigrant visa process for a spouse. Because you will have been married more than two years when the visa is issued, the visa issued, will be category IR-1 as will be the status you are granted upon entering the USA using the IR-1 visa.

There's much more to the process than starting it. You're at the right place to learn what's coming next and how to prepare for it.

It is not illegal to visit your spouse during the process, but it is unlikely you will obtain a visa allowing you to do so.

When you say " indication of immigrant intent.". Do you mean they will deny my visa because they know i want to immigrate and do not want to risk me going to the US and staying illegally?

Or, is it a set policy that anyone with immigration intent will not get approved for B-2 regardless of if i can prove i am going to leave again and it is strictly for a visit to see my wife to kill some of the waiting time while my application processes?

[Ryan H 3,812]

***Moved from IR-1/CR-1 Process & Procedures to Tourist Visas forum.***

**Moderator hat off**

If i apply for a B-2 visa is the decision on my approval deny based on an interview so I can meet and talk to the person who makes the decision or is it all done in the background while i wait for a decision?

The decision is made by the CO that interviews you and you will be immediately informed of what that decision is.

When you say " indication of immigrant intent.". Do you mean they will deny my visa because they know i want to immigrate and do not want to risk me going to the US and staying illegally?

Or, is it a set policy that anyone with immigration intent will not get approved for B-2 regardless of if i can prove i am going to leave again and it is strictly for a visit to see my wife to kill some of the waiting time while my application processes?

Federal law specifically states that an applicant will have presumption of immigrant intent and the burden is on the applicant to overcome that presumption through evidence of strong ties to their own country. Having a US Citizen spouse essentially supersedes any tie an applicant may have.

[entertained777 2]

***Moved from IR-1/CR-1 Process & Procedures to Tourist Visas forum.***

**Moderator hat off**

The decision is made by the CO that interviews you and you will be immediately informed of what that decision is.

Federal law specifically states that an applicant will have presumption of immigrant intent and the burden is on the applicant to overcome that presumption through evidence of strong ties to their own country. Having a US Citizen spouse essentially supersedes any tie an applicant may have.

Thank you very much! This helps a lot. Very good response I appreciate it.

Final question. If i have my i-130 in process and have my NOA1 can i still have a chance at getting my B2 Visa? I do have a very strong tie to Australia that I am confident would be accepted (even if it isnt i can only try). I just need to know that if my i-130 is in process I can still file the B2 Visa or does the i-130 process automatically supersede any other reason I might have that proves i will return to Australia.

Edited October 8, 2015 by entertained777

[entertained777 2]

I might as well share my reason. I wont give away specifics.

But i have had an organ transplant that requires daily medication to avoid rejection. My government/medical system only authorizes a certain amount months of medication at a time and to get more i MUST see my doctor here in Australia. If i do not have this medication i could lose the organ which in turn would add another 3-5 years minimum of not being able to move to be with my wife

I do not know immigration's stance on medical reasons but to me that's a pretty strong tie and reason to have to return to Australia. Anyone have any experience on something like this or similar?

[MacUK 983]

Thank you very much! This helps a lot. Very good response I appreciate it.

Final question. If i have my i-130 in process and have my NOA1 can i still have a chance at getting my B2 Visa? I do have a very strong tie to Australia that I am confident would be accepted (even if it isnt i can only try). I just need to know that if my i-130 is in process I can still file the B2 Visa or does the i-130 process automatically supersede any other reason I might have that proves i will return to Australia.

Think of it this way, how strong would you say those ties are when you've already shown that you plan to leave Australia when you submitted the I-130?

As for your needing to be back for medical treatments, there are doctors in the US too.

But the only way to find out is to try. If you don't try for the B-2 you'll always wonder if it might have been approved.

All you'd lose is the application fee and it being denied or approved doesn't affect your immigration application at all. You will get a chance to talk to a Consular Officer although how long an interview that is can vary. Most of the decision has already been made based on the information on your DS-160 but you will get a chance to answer questions in person too.

I'm a fellow VWP overstayer (although my overstay was a lot longer than yours).

To date I have been denied 3 tourist visas due to me not being able to PROVE that I have no immigrant intent. And I don't have any immigration plans at all, let alone an I-130 in progress.

Good luck

[pushbrk 12,883]

You only risk your time and money, if you apply for a B2 visa. I expect it will be time and money wasted, but I could be wrong. I have been before, in similar circumstances. If you want to take your chances at an interview, go for it. If you get it, and then stay to adjust status, expect a very difficult time. In your situation, if you convince a Consular officer you are only going to visit, and then do otherwise, your AOS attempt is almost sure to be denied.

It probably won't come to that though. If you get the visa and use it, the CBP officer is likely to stamp your passport at entry and write "No AOS" or words to that exact effect, next to the stamp. Seeing this, a USCIS official at an AOS interview, will deny the AOS and send you back to Australia to wait out an immigrant visa process. Any overstay, that results from your wait for an interview, will NOT be forgiven.

Edited October 9, 2015 by pushbrk

[entertained777 2]

Thank you all for the responses. My wife and I have discussed it and we are just going to file the i-130 and ill wait in Australia.

We do not want to jeopardize our future together over a 2-3 month visit. After all, it is nothing in the bigger scheme of things.

Plus she said she does not want to have to say goodbye again, which would happen if I came on a B2 as i would have to leave.

We are filing next week so im sure i will be visiting this forum regularly.

I appreciate all the responses

Edited October 9, 2015 by entertained777

[Ryan H 3,812]

Off topic posts removed.