Student Visa or Tourist Visa with pending I130 and F2A Filing

[jan22 3,053]

10 minutes ago, SusieQQQ said:

Agree but with a small correction, only immediate relatives of USC can adjust from visa waiver entry, not any other family or employment category.

Thanks for the clarification.  To slightly clarify the clarification, though -- some IRs are covered by the EO and are banned from entry as an immigrant.  So, if an IR-5 applicant or IR-4 whose priority date is current -- but whose IV has not yet been issued -- entered on the visa waiver, they could file to adjust; otherwise no way to immigrate under current EO.

Edited April 27, 2020 by jan22

[MrPonjikkara 0]

@geowrian

I understand the point you are making. And I can totally see the angle.

Since the i130 approval time for LPR is horrible, will that be considered when a CO is looking at it? Will this be based on CO discretion or is there a USCIS policy that for outstanding I130 petition NIV cannot be issued?

 

@jan22

I am targeting this process after 5-4 months. Hopefully the ban is lifted which there is no guarantee. If things turn out favorable that way.. Will CO approval be still tight in my case?

[geowrian 22,337]

59 minutes ago, MrPonjikkara said:

@geowrian

I understand the point you are making. And I can totally see the angle.

Since the i130 approval time for LPR is horrible, will that be considered when a CO is looking at it? Will this be based on CO discretion or is there a USCIS policy that for outstanding I130 petition NIV cannot be issued?

There's no stated/publicly posted policy (as a side note, it would be a DOS policy in the FAM, not USCIS policy). It's just a known consideration.

The final decision is up to the CO. They are not prohibited from issuing said visa if they believe the applicant will return without violating status. It's just a tough argument to make given the mandatory presumption every applicant has by default.

 

Any ties to the US are a factor in determining immigrant intent. A sibling, for instance, with even an I-130 is process, likely would not have the same challenges as that is a 12-30+ year process and overstaying is less likely as much of a risk (because it's not overlooked and the existing relative cannot ever get around that...only via meeting a USC spouse or something in the US). Same for a 21+ son/daughter of a USC given the timelines and same restrictions.

It's not that having the tie is not a factor, but it would likely be less of a negative factor (all else being the same) given those constraints.

[jan22 3,053]

43 minutes ago, MrPonjikkara said:

@geowrian

I understand the point you are making. And I can totally see the angle.

Since the i130 approval time for LPR is horrible, will that be considered when a CO is looking at it? Will this be based on CO discretion or is there a USCIS policy that for outstanding I130 petition NIV cannot be issued?

 

@jan22

I am targeting this process after 5-4 months. Hopefully the ban is lifted which there is no guarantee. If things turn out favorable that way.. Will CO approval be still tight in my case?

USCIS policy does not govern the issuance of visas.  That said, there is no State Department policy that prohibits the issuance of an NIV to someone with a pending I-130. 

 

Each case is looked at individually, taking into account things like the probable wait time remaining for the I-130 adjudication, whether it's for an IR case or the priority date is current or close to current for a family preference case, the stated purpose of travel, etc.  These are all things that bear on the likelihood that if an NIV were granted and used to enter the US, the intent is to leave the US after the visit/reason to enter is completed.  It seems pretty clear your intent is to find a way for your spouse to get to the US and stay until she can adjust status.  Understandable that you want her with you -- but your plan would appear to be trying to find a way around waiting for the immigrant visa process in a way that skirts the edge and attempts to circumvent the current ban. 

 

A student visa for a second Master's degree would appear somewhat suspicious/unusual to the consular officer, who would question the true motive.  In the current situation, the likelihood of an intending-immigrant spouse going to the US and leaving at the end of a visit when her priority date is current but she can't enter the US as an immigrant -- but could adjust status -- is also extremely questionable.  Hopefully, you are right and things will settle down and the current ban on immigration in certain categories will be lifted.  If not -- IMO -- it is unlikely your spouse would be approved for an NIV.

[MrPonjikkara 0]

@geowrian @jan22

great explanation from both of you. I understand the perspective of a CO or how the USCIS would see my case. Thanks much.

[PalRish 12]

On 4/23/2020 at 10:46 PM, Unlockable said:

Tourist visa, yes. But they will see she has a pending immigrant visa and likely deny it. But we have seen a few that was granted even though they have a pending immigrant visa.

 

Student visa would likely not happen. 

 

Basically if you apply for too many visas they will see you as "visa shopping". And that will give them a big red flag.

Can someone who already have a tourist visa and is waiting for F2A visa interview travel to US ? 

Edited December 11, 2020 by PalRish

[SusieQQQ 11,586]

6 hours ago, PalRish said:

Can someone who already have a tourist visa and is waiting for F2A visa interview travel to US ? 

You can try (assuming you don’t come from or transit a Covid banned country) but you had better be sure you have very strong evidence of ties to go back home after a short trip, as it is very likely they will suspect you want to stay and adjust status. Risk of entry denial is fairly significant imo.

[PalRish 12]

On 12/11/2020 at 9:55 PM, SusieQQQ said:

You can try (assuming you don’t come from or transit a Covid banned country) but you had better be sure you have very strong evidence of ties to go back home after a short trip, as it is very likely they will suspect you want to stay and adjust status. Risk of entry denial is fairly significant imo.

Hi,

Thank you for your response and apologies for the delayed reply.

After being approved by USCIS and DQ'ed by NVC also  "they can suspect you want to stay and adjust status". I mean I have a valid tourist visa and just want to visit my husband for a short while.

[Boiler 45,486]

I know it is simply not possible to do so from the UK at the moment, so you need to check how Covid impacts your plans.

[SusieQQQ 11,586]

4 hours ago, PalRish said:

Hi,

Thank you for your response and apologies for the delayed reply.

After being approved by USCIS and DQ'ed by NVC also  "they can suspect you want to stay and adjust status". I mean I have a valid tourist visa and just want to visit my husband for a short while.

? Yes that was understood and was the reason I gave you the answer I did. 

[Ontarkie 14,221]

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