For many couples, one of the biggest frustrations about the marriage-based green card process is that it takes a long time. You are probably eager to know how soon you can see your husband or wife in the United States.
Visiting the United States can be more complicated than just buying a plane ticket.
That’s because if you are married to a U.S. citizen or green card holder, you may face difficulty convincing a consular officer that you have “tourist intent” (also known as “nonimmigrant intent”)—in other words, that you intend to visit the United States and leave before your tourist visa expires.
And then there is another hurdle: Upon your arrival in the United States, the decision to allow or deny your admission is always at the discretion of the U.S. Customs and Border Protection (CBP) officer who processes you at the border or port of entry. There is always the risk of being denied admission upon arrival to the United States, even with a valid tourist visa.
That said, you should never misrepresent your reasons for visiting the United States, either on a visa application or to CBP officer. You should also never lie about being married to a U.S. citizen or green card holder.
Any kind of misrepresentation could jeopardize your ability to get a green card in the future.
What You Need to Prove
When the consular officer is reviewing your tourist visa application, he or she will be looking for proof that:
- You plan to return to your home country after your visit to the United States
- Your visit is for a limited, short period of time
- You can support yourself during your visit
This is true for any visitor applying for a tourist visa, or any visitor coming to the United States under the Visa Waiver Program (which allows citizens of some countries to visit the United States without a visa for up to 90 days).
Spouses of U.S. citizens or green card holders, especially those who are in the middle of the marriage-based green card process (with a pending I-130 petition), often face additional scrutiny. The consular officer might suspect that you are trying to get around the required green card process to be together.
To have the best chance of being granted admission when you’re entering the United States, it’s important to take extra care in preparing your tourist visa application and assembling the right documents to take with you.
Preparing Your Documents
Whenever you’re applying for a tourist visa, you are required to establish that you have strong ties to your home country. This is to ensure that you will return home before your tourist status expires. Here are some examples of documents that can help prove strong ties to your home country:
- Copy of an unexpired lease or a home mortgage
- Letter from your employer stating the dates of your vacation, including when you’ll be returning to work
- School enrollment confirmation in your home country, either for yourself or your children
- Proof that your children are staying in your home country during your visit, such as a letter giving a grandparent the authority to make decisions about your children
- Title deeds for any property you own in your home country
It’s also generally a good idea to provide copies of your bank statements, credit card statements showing healthy spending limits, or other proof that you’ll be able to support yourself financially during your visit to the United States.
What to Expect If You DO Have a Pending I-130 Petition
Visiting the United States while you have a pending I-130 petition (the first step in obtaining a marriage-based green card) involves walking a logical tightrope: You clearly do intend to move to the United States permanently, once you get your green card. But right now, you’re required to convince the consular officer or CBP agent that you are not settling in the United States yet.
That can be difficult to do if you’ve already quit your job and sold your all your property in your home country. That’s why many people choose to visit the United States before doing either of those things.
It’s important to present strong evidence that you plan to return to your home country after your short visit—although there is still always a risk, as admission is never guaranteed.
What to Expect If You DON’T Have a Pending I-130 Petition
If you don’t have a pending I-130 petition—that is, if you haven’t started the marriage-based green card process yet—you won’t have to deal with the puzzle described above (that you clearly intend to settle in the United States sometime soon).
You might still face additional scrutiny when applying for a tourist visa or arriving in the United States, however, because the consular officer or CBP agent might suspect that you intend to bypass the whole I-130 process by entering on a tourist visa and then applying for a marriage-based green card (technically, “adjustment of status”) once you’re in the United States.
If you don’t have any immediate plans to settle in the United States, you should be clear about that during the visa application. Some extra things you might want to prove include:
- You have employment or educational responsibilities in your home country that prevent you from moving permanently to the United States at the present moment
- You have a confirmed travel plan with a clear date of return to your home country
Again, you should never lie about the fact that your spouse is a U.S. citizen or green card holder, because lying could jeopardize your ability to get a green card in the future.
Three extra factors
There are at least three other factors that can make a big difference in whether or not your tourist visa is approved (and whether you are admitted upon arrival):
Your Immigration History: If you have a history of coming and going to the United States without any immigration violations, it’s more likely that the consular officer or CBP agent will believe you when you make your case that you intend to visit the United States for a temporary visit and then return to your home country. On the other hand, if you have ever had an immigration violation—even if you overstayed a previous tourist visa for one day—your chances of approval will be much lower.
Your Country of Origin: If you come from a country with high rates of immigration fraud, you are less likely to have the consular officer or CBP agent believe that you intend to visit as a tourist only. (While there is no official list of such countries, in past years such countries as Brazil, China, the Dominican Republic, India, and Mexico were subject to relatively high rates of immigration fraud.) This is all the more reason to establish that you have strong ties to your home country, as detailed in the “Preparing your Documents” section above.
Other Relatives in the United States: If you have a lot of family already in the United States—especially immediate family members—this could lead to extra scrutiny. The consular officer or CBP agent may be inclined to believe that you are less likely to return to your home country if you have strong family ties in the United States. In addition to the list outlined in the “Preparing your Documents” section above, it’s a good idea to have a round-trip ticket demonstrating your plan to return home on a specific date.
What If I Change My Mind About Going Home?
The U.S. government recognizes that life doesn’t always go according to plan.
What if you come to the United States to visit your spouse, fully intending to return to your home country, but then decide to stay in the United States and apply for a green card without going back home (technically, an “adjustment of status”)?
Your green card application will not necessarily be denied. But you will need to prove that you did indeed change your mind—that you intended to return home but some significant change in circumstances changed your plans. For example, if you intended to visit your spouse in the United States for a short period, but a change in your spouse’s health prompted you to decide to remain in the United States, this is something you would expect to explain at your green card interview.
For those who do apply for a green card after entering the United States on a tourist visa, U.S. Citizenship and Immigration Services (USCIS) previously used “the 30/60 rule” as a guideline to decide how much extra scrutiny to give the green card application:
- If you applied for a green card less than 30 days after entering the United States as a tourist, USCIS would assume that you misrepresented your intentions when you entered the country. Although it was not impossible to convince USCIS otherwise, you would have likely faced a steep uphill battle.
- If you applied for a green card between 30 and 60 days after entering the United States as a tourist, USCIS wouldn’t immediately assume that you lied about your intentions for visiting the United States. However, your green card application would have likely faced greater scrutiny, and your green card interview may have included questions to ensure that you did not intend to apply for a green card when you entered as a tourist.
- If you applied for a green card more than 60 days after entering the United States as a tourist, your green card application typically did not trigger any additional scrutiny. However, USCIS could still deny your application if they found that you lied about your intentions when you first entered the United States.
As of September 2017, however, a new “90-day rule” seems to have done away with the previous “30/60-day rule” described above.
That is when the U.S. Department of State updated its definition of what constitutes “misrepresentation” for people on temporary visas. Under the new guidelines, any of the following conduct within the first 90 days of entry into the United States may be considered a violation of that visa status:
- Engaging in unauthorized employment
- Enrolling in an unauthorized course of study (without a proper student visa)
- Entering into a marriage with a U.S. citizen or green card holder
- Filing an green card sponsorship petition (the Form I-130) or “adjustment of status” green card application (the Form I-485)
If any of the above activities take place within 90 days of entry into the United States on a temporary visa (such as a B1/B2 visitor’s visa), a presumption of willful misrepresentation will arise. In such a scenario, the burden will be on the person seeking a green card to disprove such a presumption and submit evidence to overcome it—otherwise a USCIS officer could deny the green card application or even revoke the the temporary visa.
This presumption of willful misrepresentation will not arise, however, if the above activities take place at least 90 days after entry into the United States on a temporary visa. While observing the 90-day rule doesn’t guarantee a successful green card application, it’s probably a good idea to play it safe.
We understand that this process can be confusing and intimidating at first. But by always telling the truth and being prepared, you can take charge of your immigration journey.