Spousal visa for student

[Bob44 12]

My gal is Colombian and we’ve been together nearly continually for 2 1/2 years. Traveled during pandemic. She’s studied here as a university student (left and returned and currently here. We met before she ever came here. Finishes this summer). We are planning on getting married but she and I are both unsure how much time we want to be in the US. Bottom line just want to be together.  She has a tourist visa interview (sorry. The actual visa numbers confuse me) in Colombia in August. She also is in the last throes of getting her Portuguese passport from having a Sephardic Jew in her family. 
The problem that confuses me (we’ve spoken to two lawyers) is that her parents are getting older and she wants to visit them every six months or so.  If she gets the tourist visa, can we file for green card in Colombia and can she come here for 90 day intervals and be with me if she doesn’t work? What’s the difference with a Portuguese passport. What are the limits? Can she come and go with either?  We are trying to plan our lives past 90 days for first time in 2 plus years. Thanks!

Edited April 25, 2022 by Bob44

[powerpuff 6,702]

It sounds to me like she wants to use the B2 tourist visa (or ESTA if using Portuguese passport) to live mainly in the US while waiting for the spousal visa process and visit her parents in Colombia once in a while. It might seem this way to CBP with this pattern of travel.
 

Every entry is at the discretion of CBP, we cannot tell you with certainty she will be able to come and go as she pleases. They might want to see proof of her ties to Colombia and with no job back there and a US citizen husband in the US, well, that doesn’t look like she has strong ties to Colombia. 
 

She’s eligible for ESTA with her Portuguese passport. 
 

“When traveling to the United States with the approved ESTA, you may only stay for up to 90 days at a time and there should be a reasonable amount of time between visits so that the CBP Officer does not think you are trying to live here. There is no set requirement for how long you must wait between visits.”

 

https://help.cbp.gov/s/article/Article-1072?language=en_US

 

 

[Bob44 12]

Thanks a bunch. At the end of the day she wants to get a green card but we just want to move freely. Doesn’t everyone? And be together. I think the question is really can we apply for green card in Colombia and can she travel on her tourist visa while visiting while we are waiting? Or her Portuguese passport?

[Redro 4,611]

1 hour ago, Bob44 said:

My gal is Colombian and we’ve been together nearly continually for 2 1/2 years. Traveled during pandemic. She’s studied here as a university student (left and returned and currently here. We met before she ever came here. Finishes this summer). We are planning on getting married but she and I are both unsure how much time we want to be in the US. Bottom line just want to be together.  She has a tourist visa interview (sorry. The actual visa numbers confuse me) in Colombia in August. She also is in the last throes of getting her Portuguese passport from having a Sephardic Jew in her family. 
The problem that confuses me (we’ve spoken to two lawyers) is that her parents are getting older and she wants to visit them every six months or so.  If she gets the tourist visa, can we file for green card in Colombia and can she come here for 90 day intervals and be with me if she doesn’t work? What’s the difference with a Portuguese passport. What are the limits? Can she come and go with either?  We are trying to plan our lives past 90 days for first time in 2 plus years. Thanks!

If your wife manages to get her B1/B2 visa she can use that to visit the US. 

But, she might have the B1/B2 refused and if that occurs she might not qualify for ESTA even if she receives her Portuguese passport. 

https://help.cbp.gov/s/article/Article-1097?language=en_US

 

Where is she now? In the US or in Colombia... if she is still in the USA with plans to return to Colombia in the summer and then applying for a tourist visa as soon as she arrives there is a chance her tourist application will be denied... Would you be interested in living and working in Colombia?

Edited April 25, 2022 by ROK2USA

[Bob44 12]

Thanks. She is here now and can stay til a few months after school. Why would her tourist visa be denied ? I mean she applied 18 months ago. Then said the hell with it I’m gonna get college level English. 
 

Bottom line. They deny her? I’m out. Yes I will live elsewhere. 

[Redro 4,611]

2 minutes ago, Bob44 said:

Thanks a bunch. At the end of the day she wants to get a green card but we just want to move freely. Doesn’t everyone? And be together. I think the question is really can we apply for green card in Colombia and can she travel on her tourist visa while visiting while we are waiting? Or her Portuguese passport?

If her tourist visa is approved she will be allowed to visit the US while the I-130 is pending but it is up to the discretion of CBP. 

If you read around the forums you'll see some people have been denied entry on ESTA and B2s before. 

The safest bet is for the US citizen to visit the foreign national in their country. But, denied B2 or ESTA should have no impact on your spousal visa process. 

[Bob44 12]

Thank you. And to be clear we are not married yet. We assume that would be a no no until she gets tourist visa. We are considering other countries. It would just be nice to have her be able to come here. We plan on being in Colombia six months out of the year. I’ve had my life set up for six months here and six months gone for awhile. She can work remote too. 

[Redro 4,611]

7 minutes ago, Bob44 said:

Thanks. She is here now and can stay til a few months after school. Why would her tourist visa be denied ? I mean she applied 18 months ago. Then said the hell with it I’m gonna get college level English. 
 

Bottom line. They deny her? I’m out. Yes I will live elsewhere. 

 

Read these two threads. There are countless others on VJ showing if you have a USC partner (living in US or overseas) you have a high chance of having your tourist application denied. But, strong ties to your home country can result in approval. As your partner has been living in the US for several years her ties to her home country are probably weak.  

 

It doesn't matter if you are married or not... 

 

 

Edited April 25, 2022 by ROK2USA

[Redro 4,611]

7 minutes ago, Bob44 said:

Thank you. And to be clear we are not married yet. We assume that would be a no no until she gets tourist visa. We are considering other countries. It would just be nice to have her be able to come here. We plan on being in Colombia six months out of the year. I’ve had my life set up for six months here and six months gone for awhile. She can work remote too. 

FYI: She is not allowed to work on a tourist visa in the USA. And if she is in the US currently on an F1 she should not be working remotely for a company in her home country. 

 

 

[Bob44 12]

She’s not. She CAN work remotely. She’s only studying. 

[Redro 4,611]

20 minutes ago, Bob44 said:

She’s not. She CAN work remotely. She’s only studying. 

If will mention if you are interested in getting married and you partner is currently in the US. You should investigate getting married now and applying for adjustment of status. 

She won't be allowed to leave the country until she receives AP (advanced parole) but this will allow the two of you to visit her family while her I-485 is pending. 

I'm not really sure what your future plans are... but it seems like you want to live in the US for 6 months and then Colombia for 6 months out of every year. 

Tourist visa is not guaranteed and ESTA only allows you to visit the US for 90 days at a time. 

You should also be aware CBP does not always grant the full 6 months upon entry. 

 

I am also interested in seeing documentation that shows F1 students are allowed to work remotely. 

 

These are the rules I see on uscis.gov

Employment

F-1 students may not work off-campus during the first academic year, but may accept on-campus employment subject to certain conditions and restrictions. After the first academic year, F-1 students may engage in three types of off-campus employment:

• Curricular Practical Training (CPT)
• Optional Practical Training (OPT) (pre-completion or post-completion)
• Science, Technology, Engineering, and Mathematics (STEM) Optional Practical Training Extension (OPT)

F-1 students may also be eligible to work off-campus on a case-by-case basis as a result of special situations such as severe economic hardship or special student relief. M-1 students may engage in practical training only after they have completed their studies.

For both F-1 and M-1 students any off-campus training employment must be related to their area of study and must be authorized prior to starting any work by the Designated School Official (the person authorized to maintain the Student and Exchange Visitor Information System (SEVIS)) and USCIS.

For more information on the Student and Exchange Visitors Program, see the Student & Exchange Visitor Program, Immigration & Customs Enforcement and the Study in the States Training Opportunities in the United States pages.

In general, only noncitizens who have permission from DHS to work can apply for a Social Security number.  Find additional information about  International Students and Social Security Numbers (PDF) on the Social Security Administration website. 

 

[Bob44 12]

Thanks again for your help. She is in an English Immersion program here that is short. She was a military attorney in Colombia and is on sabbatical. So no, she’s not working nor have time for it. 
 

The attorneys we talked to here said if we married here and filed  and adjusted her status she couldn’t leave and return. Which I think is one of the bad policies we have. Was the attorney wrong? Should get married, file, change status and then live elsewhere for two years? That’s the crux. We both have relationships in our countries so if we go two years away, we are away. I mean, we want a life. And it’s been a two year pain. 

Edited April 25, 2022 by Bob44

[pushbrk 12,884]

8 minutes ago, Bob44 said:

Thanks again for your help. She is in an English Immersion program here that is short. She was a military attorney in Colombia and is on sabbatical. So no, she’s not working nor have time for it. 
 

The attorneys we talked to here said if we married here and filed  and adjusted her status she couldn’t leave and return. Which I think is one of the bad policies we have. Was the attorney wrong? Should get married, file, change status and then live elsewhere for two years? That’s the crux. We both have relationships in our countries so if we go two years away, we are away. I mean, we want a life. And it’s been a two year pain. 

The attorney wasn't wrong, just incomplete.  She'll need to wait for advance parole before leaving the US. If not, she won't get back in.  Nothing stops her from leaving but if she leaves without advance parole, you'll have to start over.  Advance parole is currently taking about six months from the filing date.

 

If you decide to adjust her status then should would not want to leave for the period from now until marriage, then until filing plus about six months.

[Bob44 12]

THAT was super helpful. I don’t think the attorney mentioned advanced parole. So we will likely go with the tourist visa route. She’s gotta go in three months and I’d rather travel and live in Colombia at this point. Hopefully she gets the tourist visa. Thanks!

[Redro 4,611]

8 minutes ago, Bob44 said:

THAT was super helpful. I don’t think the attorney mentioned advanced parole. So we will likely go with the tourist visa route. She’s gotta go in three months and I’d rather travel and live in Colombia at this point. Hopefully she gets the tourist visa. Thanks!

Good luck with the process! 

If possible it would be great if you write up her tourist visa experience after interview. We don't read a lot of success stories but we do know they are out there. 

And it is completely okay for you to live in Colombia while you wait out the spousal visa process. Quite a few of us on this forum live outside the US with our partners.