Can you file for IR1 or the Green Card, while in the US on a tourist visa and married for more than 2 years to an US citizen?
Thank you!
Full Version: File for IR1 while in the US
VisaJourney.com > Marriage Based Immigration (K1, K2, K3, etc) to the USA > IR-1 / CR-1 Spouse Visa General Discussion
No, you can't file for an IR1 while in the states. You'd have go the "adjust status" route. And, I'm not sure if you can "get away" with doing that on a visitor visa. It's not like you spontaneously decided to get married and file for adjustment of status while visiting. It seems like you'd have to go the IR1 route, which may be actually better than adjusting status, except for the fact that you can't stay here while filing. If you are a VWP country, then they may let you visit while you are in the process of filing for an immigrant visa.
QUOTE(Nathalielien @ Feb 6 2008, 03:51 AM) 
Can you file for IR1 or the Green Card, while in the US on a tourist visa and married for more than 2 years to an US citizen?
Thank you!
Thank you!
Yes, you can file for the IR-1 while in the US on a tourist visa. However, the intending immigrant must not overstay that visa and will have to return to their home country for the interview stage.
You've had a yes and a no response, and they both have some truth to them.
You CAN file the I-130 that starts the IR-1 process while both of you are in the states. But you can't complete the process from within the US. In order to get a visa, the intending immigrant would have to go abroad to get the visa at a consulate. Filing the paperwork to start the visa doesn't grant the alien any right to stay in the US, and doesn't extend the alien's status in any way, so the alien should leave at the expiration of status or shortly thereafter. There's no penalty for an overstay of less than 180 days, but the three and ten year bars on admissibility start to kick in after that.
Assuming the alien entered the US legally and can prove it, it's likely that adjustment of status is the more appropriate route. Instead of getting a visa, the alien would get a Green Card directly in the US. This would allow the alien to remain inside the US for the duration of the process. Overstays aren't an issue, as long as the alien stays inside the US until the green card is issued.
But either route is possible, and the right choice depends on personal circumstances and details which haven't been presented here.
You CAN file the I-130 that starts the IR-1 process while both of you are in the states. But you can't complete the process from within the US. In order to get a visa, the intending immigrant would have to go abroad to get the visa at a consulate. Filing the paperwork to start the visa doesn't grant the alien any right to stay in the US, and doesn't extend the alien's status in any way, so the alien should leave at the expiration of status or shortly thereafter. There's no penalty for an overstay of less than 180 days, but the three and ten year bars on admissibility start to kick in after that.
Assuming the alien entered the US legally and can prove it, it's likely that adjustment of status is the more appropriate route. Instead of getting a visa, the alien would get a Green Card directly in the US. This would allow the alien to remain inside the US for the duration of the process. Overstays aren't an issue, as long as the alien stays inside the US until the green card is issued.
But either route is possible, and the right choice depends on personal circumstances and details which haven't been presented here.
Thank you for clarifying LucyRich.
I guess one key factor here is whether the alien spouse of the OP intended to stay in the states while filing for a spouse-based visa or if they were going to return to the home country after filing.
I guess one key factor here is whether the alien spouse of the OP intended to stay in the states while filing for a spouse-based visa or if they were going to return to the home country after filing.
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