AOS for spouse entering the US with B-2 (tourism) visa

[Arensis 6]

Hello everyone;

 

I am a US citizen and I have been living in Spain the last 20 years. I got married in Spain to a foreign woman (non-US citizen) and I have just been offered a new job in the US. I can go work there wherever I want, but my spouse can't go live there since she only has a B-2 tourism visa.

 

The company I would work for told me that this is a somewhat frequent situation and that usually the spouse enters in a tourist visa, and then does an AOS. All advice I found on the internet (including this forum) is about getting married on the US on a B-2 visa and then AOS. We are already married so we won't get married again in the US.

 

I have the following questions:

1. What are the chances they will let my spouse in with her B-2 visa? When the ask about the purpose of the travel, she will answer along these lines: "I am married to a US citizen who is moving back to the US and I intend to file for AOS in the near future". Of course we will have all documentation showing we are actually married and it is a "bona fide" marriage so it can be consulted by the border guard when we enter if neccesary.
2. The inmigration consultant for my company states that although the writen law says that B-2 is a noninmigrant visa, in practice all AOS from spouses of US citizens are accepted this way. Anyone had a similar case.

 

If it is not possible, I guess I will pass on this oportunity and then file ourselfs for a CR1 visa and then find a new job on my own. I am just asking if anyone knows other cases like this since if I commit to go there I will lose my current position and if my spouse cannot enter the US I will leave the new position and will be jobless.

 

I will certainly look into this with two or three inmigration lawyers, but would like to have feedback from the community. I will also update with what the lawyers tell me in case this is of use for someone in the future.

Edited September 30, 2022 by Arensis
Correction of typos.

[powerpuff 6,713]

What you suggested here is immigration fraud. Entering the US with a non-immigrant visa such as B2 with intent to adjust status is immigration fraud.

 

I suggest you reach out to the US consulate in Spain and request direct consular filing (DCF) instead of going the traditional CR1 route. It will be much faster and imminent relocation for a job is an exceptional circumstance. Of course, this is all at the discretion of the consulate. They’re not obligated to grant your request.

 

https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition/filing-petitions-outside-the-us.html

Edited September 30, 2022 by powerpuff

[Dashinka 24,522]

23 minutes ago, Arensis said:

Hello everyone;

 

I am a US citizen and I have been living in Spain the last 20 years. I got married in Spain to a foreign woman (non-US citizen) and I have just been offered a new job in the US. I can go work there wherever I want, but my spouse can't go live there since she only has a B-2 tourism visa.

 

The company I would work for told me that this is a somewhat frequent situation and that usually the spouse enters in a tourist visa, and then does an AOS. All advice I found on the internet (including this forum) is about getting married on the US on a B-2 visa and then AOS. We are already married so we won't get married again in the US.

 

I have the following questions:

1. What are the chances they will let my spouse in with her B-2 visa? When the ask about the purpose of the travel, she will answer along these lines: "I am married to a US citizen who is moving back to the US and I intend to file for AOS in the near future". Of course we will have all documentation showing we are actually married and it is a "bona fide" marriage so it can be consulted by the border guard when we enter if neccesary.
2. The inmigration consultant for my company states that although the writen law says that B-2 is a noninmigrant visa, in practice all AOS from spouses of US citizens are accepted this way. Anyone had a similar case.

 

If it is not possible, I guess I will pass on this oportunity and then file ourselfs for a CR1 visa and then find a new job on my own. I am just asking if anyone knows other cases like this since if I commit to go there I will lose my current position and if my spouse cannot enter the US I will leave the new position and will be jobless.

 

I will certainly look into this with two or three inmigration lawyers, but would like to have feedback from the community. I will also update with what the lawyers tell me in case this is of use for someone in the future.

For number 1, I expect she would have zero chance of entering since entering the US on a B2 visa with the intent to stay and adjust status is fraud.

 

For number 2, adjusting status from a B2 is legal if the immigrant is already in the US, and circumstances have changed leading to the AOS path.  I realize this is somewhat nuanced, but it is all about intent when entering the US.

 

The other option that might be open is seeing if the consulate in Spain will accept a direct filing of the I130 due to a job change of the USC.  You mentioned you have a flexible schedule, but it might be possible.  You should look into that before filing the I130 with USCIS as once you do that, the consulate cannot accept a direct filing.

 

As to the bold part, if a company immigration expert is suggesting this, they should be reported for suggesting fraud.

 

Good Luck!

Edited September 30, 2022 by Dashinka

[Arensis 6]

46 minutes ago, powerpuff said:

I suggest you reach out to the US consulate in Spain and request direct consular filing (DCF) instead of going the traditional CR1 route. It will be much faster and imminent relocation for a job is an exceptional circumstance. Of course, this is all at the discretion of the consulate. They’re not obligated to grant your request.

 

42 minutes ago, Dashinka said:

The other option that might be open is seeing if the consulate in Spain will accept a direct filing of the I130 due to a job change of the USC.  You mentioned you have a flexible schedule, but it might be possible.  You should look into that before filing the I130 with USCIS as once you do that, the consulate cannot accept a direct filing.

 

Thanks to both of you! I did not know about this option. I will contact them to see if I would apply. I guess I already knew that what I was proposed was unreliable/illegal and that is why I made this post.

 

Assuming we can get an expedited I130, would she be able to enter the US with only that while we are waiting for the I864 (financial support) and the rest of the documents to get the greencard? I see that even with consular filling, the other documents are not expedited. Even though she would not be able to work in the US until everything is processed, it would be enough for us if she can come and live with together.

Edited September 30, 2022 by Arensis

[carmel34 3,637]

30 minutes ago, Arensis said:

Assuming we can get an expedited I130, would she be able to enter the US with only that while we are waiting for the I864 (financial support) and the rest of the documents to get the greencard?

If the US Embassy in Spain accepts direct consular filing, they will process the I-130, then ask for the I-864 and other documents, then schedule a spousal visa interview.  She cannot enter the US to live with you until the spousal visa has been approved and put in her passport.  Direct consular filing, if they accept your case, only takes a few weeks or months.  If they deny your request for DCF, you will have to file the I-130 online or by paper to USCIS and the process takes 1-2 years from filing to interview/visa approval.  In the case of filing the I-130 online, the I-1864 is not required until the NVC stage, maybe a year or more after I-130.  Good luck!

Edited September 30, 2022 by carmel34

[Dashinka 24,522]

56 minutes ago, Arensis said:

 

 

Thanks to both of you! I did not know about this option. I will contact them to see if I would apply. I guess I already knew that what I was proposed was unreliable/illegal and that is why I made this post.

 

Assuming we can get an expedited I130, would she be able to enter the US with only that while we are waiting for the I864 (financial support) and the rest of the documents to get the greencard? I see that even with consular filling, the other documents are not expedited. Even though she would not be able to work in the US until everything is processed, it would be enough for us if she can come and live with together.

Your biggest hurdle to going the I130 DCF route is showing exceptional circumstances since you said your start date is flexible.  You may want to solidify that with your future employment.

[Crazy Cat 41,907]

2 hours ago, Arensis said:

The company I would work for told me that this is a somewhat frequent situation and that usually the spouse enters in a tourist visa, and then does an AOS.

Your company is a party to visa fraud.   A visitor visa is for visiting....

[Arensis 6]

9 minutes ago, Dashinka said:

Your biggest hurdle to going the I130 DCF route is showing exceptional circumstances since you said your start date is flexible.  You may want to solidify that with your future employment.

I do have a limited start date (until December-January). I already sent a mail to the local embassy, lets see what they say.  

 

If I am denied the consular processing of I-130, or it is not possible for my spouse to come live with me on the short term, then I would reject this position and apply to I-130 using the normal procedure. Once I get a CR1 visa, I would go live on the US with my spouse on my terms (leaving my current company and looking for a job there).

Edited September 30, 2022 by Arensis

[Dashinka 24,522]

1 hour ago, Arensis said:

I do have a limited start date (until December-January). I already sent a mail to the local embassy, lets see what they say.  

 

If I am denied the consular processing of I-130, or it is not possible for my spouse to come live with me on the short term, then I would reject this position and apply to I-130 using the normal procedure. Once I get a CR1 visa, I would go live on the US with my spouse on my terms (leaving my current company and looking for a job there).

Just get something in writing from your company showing you have to start in the next 3 months, and contact the consulate.  I am not very familiar with the overall DCF process, but you might get some help by searching DCF Madrid/Spain in the VJ search bar.

 

Good Luck!

[Arensis 6]

Thanks @Dashinka. They have already answered asking me to send our passports, marriage certificate and contract of the company specifying time of start to see if I qualify for DCF. Will try to get the company to write this document and update in a few weeks once I have that.

 

 

3 hours ago, carmel34 said:

If the US Embassy in Spain accepts direct consular filing, they will process the I-130, then ask for the I-864 and other documents, then schedule a spousal visa interview.  She cannot enter the US to live with you until the spousal visa has been approved and put in her passport.

So if I understood well, the Embassy would process the I-130 and the I-864 by themselves on a shorter timeframe. Or would the I-864 go through the normal route to the NVC? What I have read about DCF indicates that they do everything, but I want to make sure. It looks too good.

Edited September 30, 2022 by Arensis

[Lil bear 4,228]

13 minutes ago, Arensis said:

Thanks @Dashinka. They have already answered asking me to send our passports, marriage certificate and contract of the company specifying time of start to see if I qualify for DCF. Will try to get the company to write this document and update in a few weeks once I have that.

 

 

So if I understood well, the Embassy would process the I-130 and the I-864 by themselves on a shorter timeframe. Or would the I-864 go through the normal route to the NVC? What I have read about DCF indicates that they do everything, but I want to make sure. It looks too good.

Consulate does everything with DCF. Thats why it moves fast .. your application is likely the only one they are dealing with at the time.  Good luck ! 

[Dashinka 24,522]

1 hour ago, Arensis said:

Thanks @Dashinka. They have already answered asking me to send our passports, marriage certificate and contract of the company specifying time of start to see if I qualify for DCF. Will try to get the company to write this document and update in a few weeks once I have that.

 

 

So if I understood well, the Embassy would process the I-130 and the I-864 by themselves on a shorter timeframe. Or would the I-864 go through the normal route to the NVC? What I have read about DCF indicates that they do everything, but I want to make sure. It looks too good.

Here is the guide.

 

Good Luck!

 

 

[SalishSea 17,850]

10 hours ago, Arensis said:

Hello everyone;

 

I am a US citizen and I have been living in Spain the last 20 years. I got married in Spain to a foreign woman (non-US citizen) and I have just been offered a new job in the US. I can go work there wherever I want, but my spouse can't go live there since she only has a B-2 tourism visa.

 

The company I would work for told me that this is a somewhat frequent situation and that usually the spouse enters in a tourist visa, and then does an AOS. All advice I found on the internet (including this forum) is about getting married on the US on a B-2 visa and then AOS. We are already married so we won't get married again in the US.

 

I have the following questions:

1. What are the chances they will let my spouse in with her B-2 visa? When the ask about the purpose of the travel, she will answer along these lines: "I am married to a US citizen who is moving back to the US and I intend to file for AOS in the near future". Of course we will have all documentation showing we are actually married and it is a "bona fide" marriage so it can be consulted by the border guard when we enter if neccesary.
2. The inmigration consultant for my company states that although the writen law says that B-2 is a noninmigrant visa, in practice all AOS from spouses of US citizens are accepted this way. Anyone had a similar case.

 

If it is not possible, I guess I will pass on this oportunity and then file ourselfs for a CR1 visa and then find a new job on my own. I am just asking if anyone knows other cases like this since if I commit to go there I will lose my current position and if my spouse cannot enter the US I will leave the new position and will be jobless.

 

I will certainly look into this with two or three inmigration lawyers, but would like to have feedback from the community. I will also update with what the lawyers tell me in case this is of use for someone in the future.

That is illegal.  Do not do it.

[SalishSea 17,850]

8 hours ago, Arensis said:

I do have a limited start date (until December-January). I already sent a mail to the local embassy, lets see what they say.  

 

If I am denied the consular processing of I-130, or it is not possible for my spouse to come live with me on the short term, then I would reject this position and apply to I-130 using the normal procedure. Once I get a CR1 visa, I would go live on the US with my spouse on my terms (leaving my current company and looking for a job there).

US immigration does require waiting in line, with the rest of us.   

[STO Overland 137]

On 9/30/2022 at 4:12 PM, Jorgedig said:

US immigration does require waiting in line, with the rest of us.   

Thank you for the reminder!