Many couples residing in different countries often wonder: Is it feasible for Visiting Spouse in the US while our CR-1 visa (marriage green card) application is in progress? Generally, the answer is yes, it’s possible for your spouse to visit you in the United States while your marriage-based green card application is pending. Depending on your country of origin, you would typically need to apply for a B-2 tourist visa beforehand. However, before pursuing this option, it’s crucial to comprehend the challenges and potential risks involved.

Primarily, you must persuade an immigration officer that your visit will be temporary, and you intend to depart the United States before your tourist visa expires. Yet, another obstacle arises upon arrival: Upon entering the United States, a U.S. Customs and Border Protection (CBP) agent will conduct an inspection, questioning you at the border or port of entry, where visitors initially enter the country. Subsequently, the CBP agent will determine, at their discretion, whether to grant you entry, officially termed as “admission.”

Please be aware: It is imperative that you refrain from providing false information regarding your purpose for visiting the United States, whether on an immigration document, to an immigration officer, or to a CBP agent. Additionally, you must avoid misrepresenting your marital status as being married to a U.S. citizen or green card holder.

Engaging in any form of misrepresentation might jeopardize your eligibility for a green card in the future. Even with a valid tourist visa, admission is not guaranteed. Often, spouses seeking a green card face entry denials at the border when a CBP agent finds out about their marriage to a US resident and their pending marriage-based green card application.

This article delves into these risks, along with insights on applying for a tourist visa and common challenges in the application process.

Travel conditions to visit spouse while waiting for green card?

Spouses of U.S. citizens or green card holders, particularly those with a pending I-130 petition for a marriage-based green card, frequently encounter heightened scrutiny when traveling to the U.S. on a travel visa. Immigration officers may suspect that you are attempting to circumvent the green card process to reunite with your spouse more quickly.

Here’s what you can expect based on your situation:

If you have a pending I-130 petition

Traveling to the U.S. while awaiting the outcome of your I-130 petition presents complexities. Even though your ultimate intention is to reside permanently in the U.S. upon receiving your green card, you must currently persuade the immigration officer or CBP agent that you are not planning to permanently settle in the country at this time.

This can be challenging if you have already resigned from your job and liquidated all your assets in your home country. Consequently, many individuals opt to visit the U.S. before severing ties with their home country.

It is crucial, therefore, to provide compelling evidence that you intend to return to your home country after your brief visit—although there is always a risk of refusal, as admission is never assured.

If you don’t have a pending I-130 petition

If you haven’t initiated the process for obtaining a marriage-based green card by filing an I-130 petition, you won’t need to demonstrate that you aren’t hastily attempting to settle in the U.S.

However, you may still encounter increased scrutiny when applying for a travel visa or upon arrival in the U.S. This is because immigration officers or CBP agents may suspect that you’re attempting to circumvent the I-130 process by entering on a tourist visa and then pursuing a marriage-based green card through “adjustment of status” once in the U.S.

If you presently have no immediate intentions of permanently residing in the United States, it’s advisable to clearly state this in your B travel visa application. Additionally, you may want to provide evidence indicating:

• You have ongoing employment or educational obligations in your home country preventing you from relocating permanently to the United States at this time.
• You have a confirmed travel itinerary with a specified date for returning to your home country.

Once again, it’s crucial to refrain from providing false information about your spouse being a U.S. citizen or green card holder, as such misrepresentation could jeopardize your prospects of obtaining a green card in the future.

Additional Variables Impacting Visa Authorization

Several other elements can significantly influence the approval of your tourist visa application (and your admission into the U.S. upon arrival):

• Your Immigration History: A clean record of entry and exit from the United States without any immigration violations enhances the likelihood that the immigration officer or CBP agent will perceive your intent to visit temporarily and return to your home country promptly. Conversely, any previous immigration violation, even a minor overstay of a tourist visa, significantly reduces your approval chances.
• Your Country of Origin: Originating from a nation with notable rates of immigration fraud diminishes your ability to persuade the immigration officer or CBP agent that your visit is solely for tourism purposes. Countries historically associated with high levels of immigration fraud, such as Brazil, China, the Dominican Republic, India, and Mexico, tend to receive increased scrutiny. Hence, demonstrating strong ties to your home country, as detailed in the “Preparing Your Visa Application” section below, becomes imperative.
• Other Relatives in the United States: Having a significant number of relatives already residing in the United States, particularly immediate family members, may trigger additional scrutiny. The immigration officer or CBP agent might suspect a diminished likelihood of your return to your home country if you have substantial family connections in the United States. In addition to the documentation recommended in the “Preparing Your Visa Application” section below, possessing a round-trip ticket indicating a specific return date can further support your intention to depart the U.S.

Getting Your Visa Application Ready

What You Need to Demonstrate

When an immigration officer reviews your tourist visa application, they will scrutinize evidence that:

1. You have intentions to return to your home country post your visit to the United States.
2. Your stay will be brief and temporary.
3. You possess the financial means to sustain yourself during your visit.

These prerequisites apply universally, whether one is applying for a tourist visa or availing the Visa Waiver Program, which enables citizens of specific nations to enter the United States without a visa for a maximum of 90 days.

Additionally, you must demonstrate strong ties to your home country to assure your prompt return before the visa’s expiry. Supporting documents that can substantiate these ties include:

• Copy of a valid lease agreement or home mortgage
• Employer’s letter confirming your vacation dates and return-to-work schedule
• Enrollment proof in a school within your home country, either for yourself or your children
• Documentation indicating that your children will remain in your home country during your visit, such as a letter authorizing a grandparent to make decisions for them
• Property ownership titles in your home country

The 90-Day Rule

What if I decide not to return to my home country as initially planned?

If you initially planned to return to your home country after visiting your spouse in the United States but later decide to stay and apply for a green card from within the United States (a process known as “adjustment of status“), your green card application may not automatically be denied. However, you will be required to demonstrate legitimate reasons for changing your plans — that you originally intended to return home but encountered significant circumstances that compelled you to alter your decision.

For instance, if you had initially intended a short visit but a sudden deterioration in your spouse’s health necessitated your extended stay in the United States, it would be advisable to clarify this during your green card interview.

Implementing the “90-Day Rule”

For spouses who have entered the United States on a tourist visa and later apply for a marriage-based green card, USCIS utilizes the “90-day rule” as a criterion to determine the level of scrutiny for the green card application.

According to this guideline, any of the following actions occurring within the initial 90 days of arrival in the United States might be seen as a breach of your temporary visitor status:

1. Engaging in unauthorized employment
2. Enrolling in an unauthorized educational program (without a valid student visa)
3. Entering into marriage with a U.S. citizen or green card holder
4. Submitting an “adjustment of status” green card application (Form I-485)

Should any of these activities happen within 90 days of entering the United States on a temporary visa, such as a B-1 (business visitor) or B-2 (tourist) visa, USCIS will assume that you made a “willful misrepresentation” regarding the purpose of your visit. In such a scenario, you must provide evidence to refute this presumption; otherwise, a USCIS officer may deny your marriage-based green card application or revoke your tourist visa.

However, USCIS will not automatically assume there has been a willful misrepresentation if you refrain from participating in the aforementioned activities for at least 90 days following your entry into the United States on a tourist visa. Although adhering to the 90-day rule does not ensure approval of your marriage-based green card application, it is advisable to err on the side of caution.