On a thread about traveling on a tourist visa while an I-130 is pending, someone said that if you are in the US on a B-1/B-2 when your I-130 or I-129f is denied, you have to wait two years before you can reapply. I'm not sure there is any validity to this statement. I've asked for clarification and a source, but I haven't seen one yet.

I'm still very new and fairly ignorant about this whole process, but it seems to me the two things are not related. The B-1/B-2 is a straightforward visa. It is legal, and travelling on it is legal. It is not linked to the I-130 or the I-129f in any way.

I can understand if someone came on a non-immigrant visa and then applied for a change of status to an immigrant visa and were denied, then there might be a wait period before it would be possible to reapply. But if a person does not overstay his B-1/B-2, I can't see how legally visiting the US with full knowledge of the foreign embassy which granted the visa, and immigration who allowed the traveler into the country, could in any way affect an application for an immigrant visa except in a positive way. Does anyone know anything definite about this?

I'm planning for my husband to come on a B-1/B-2 visa and stay the full six months allowed on the I-94. I will file an I-130 about the time of his arrival. This will allow us to live together while we wait. It is possible to extent the B-1/B-2 visa, so we might be able to live together until he is called back to his country for his visa interview there. However, I do not want to do anything to jeopardize his immigrant visa.

The I-130 is filed by a U.S. citizen or Lawful Permanent Resident, so you are saying just because the beneficiary happened to be in the U.S. when the petition is denied (which the petitioner might not have anything to do with), the petitioner is barred from his/her right to re-file?

Sorry, but visa petitions are immigration entitlement benefits that have nothing to do with the non-citizen actually. Only upon their approval does the non-citizen gain the right to apply for a visa or adjustment of status.

Why is the I-130 denied? Are you talking about re-applying for adjustment of status, or about re-petitioning for a visa?

What will be most likely denied is a B-2 visitors visa. No Consulate is going to issue a B2 to someone knowing that he has a spouse in the US.

Thanks. This sounds right to me. It just doesn't make sense that a person legally in the US would be penalized just for the sake of being there.

As for the reason the visa would be denied, I don't know. We are going to do everything by the book. I will file an I-130 and he will either already be back in his country when he is called for his interview, or he will return to his country for the interview. I'm not going to try to change his status from a tourist to an immigrant. I will answer question 14 honestly and supply the information on his I-94, but for question 22, I will put the embassy of his country.

I can't imagine he will be denied a visa. We have been married over three years living together in a third country (not mine or his) and we have a child together. But I don't want to take any chances.

I know it is probably not usual, but he was granted his first B-2 visa after we were married. He used it twice to enter the US, once to meet my family and travel a bit, and again to join me for the birth of our daughter when I was home on maternity leave. It is about to expire in a couple of months and he will apply for a new one. As last time, I will write a letter to the Consular Officer about our situation and my husband will show strong ties to his country, where he has been living for the last year because he can't find work in China where I am living. He has very good evidence of strong ties to his country -- cars, land, businesses, standing in the community.

The last time the Consular Officer understood that we were not going to risk any future plans for him to immigrate, and after three years and twice entering and exiting the US, I think we have further proof to show this. I have high hopes that he will be granted the B-2, but as Burns said, the best laid plans of mice and men often go awry. Still, I'm making my plans.

Make sure you clearly indicate on the petition, including attaching a statement, that, although he is in the U.S. at the time you file the petition, he intends to pursue consular processing, and upon approval of the petition, USCIS should forward it to the National Visa Center (NVC) to begin immigrant visa processing. If you don't do that, USCIS will probably presume he intends to adjust status and will keep the petition upon approval awaiting his adjustment application, and it will extra expense and delay to get them to forward it to NVC later.

As for visa denial, visa overstaying and accruing more than 6 months unlawful presence is the only thing to worry about as it sounds to me. That wouldn't affect the petition approval though. Be sure you have all the passport entry stamps (including old, cancelled passports if necessary, and any USCIS extension of status approval or denial notices) to prove that none of these B-2 visits resulted in unlawful presence (even a denial notice has value in this regard). Accrued overstay (total number of days since 1997) of more than 6 months followed by a U.S. departure begins to trigger a temporary inadmissibility of 3 or 10 years, which if so would require denial of a visa.

I would think the usual process would be to file for either a K-3 visa or a IR-1 visa. Entering the US on a B visa when already married with intent to immigrate can be considered visa fraud. Avoid pain and headaches my dear friend, and file for the visa that suits your case.

Thank you for your advice. I agree that if you enter on a B visa with the intention of staying and filing for a change of status it could be considered visa fraud, but if you enter legally with the intention of exiting when the law states, I don't see how this could be fraud.

Not to worry. I fully intend to file an I-130 and follow all the same laws, policies, regulations, and processes as everyone else. My husband will have to be in his home country for his interview. It's just that during the process he will use his B-2 visa, legally granted by the embassy in his country, to legally enter the country and stay as a tourist in the US, visiting family, until such time as his I-94 states he must leave. We have every reason to believe that he will be granted an immigrant visa with no more than the usual bother and it would be utterly foolish for us to jeopardize this so senselessly.

I never had any question that his visit would be legal. If he is granted the visa and allowed entry at the POE, he doesn't work or study during his stay, and he leaves when he must, he has broken no laws. I just wanted to verify that the suggestion that if an I-130 (CR-1/IR-1) petition should be denied during the process at a time that coincides with the legal visit of the beneficiary, the petitioner would be banned from petitioning again for a designated period of time simply due to the legal visit of the beneficiary is an erroneous suggestion. The more I learn, the more confident I feel that it is.

You should be fine if that all works out as you planned, however, be prepared that it might not work out:

1) If he has spent more than 50% of his time visiting the U.S. over the last 3-5 years, they may deny him a new B-2 visa despite his strong ties abroad. This is because spending more than 50% of your time in the U.S. over an extended period constitutes residence in the U.S., which is not allowed for a B-2 visitor.

2) If he is continuing to use an existing multi-entry B-2 visa, the POE may deny him re-entry on the same grounds.

3) A pending I-130 petition could also trigger an alert on visa and POE lookout systems that he may have an intention to remain permanently when trying to get a new B-2 visa or trying to re-enter with a B-2 visa. You may want to consider filing the I-130 only after he is back in the U.S. To pursue consular processing under that situation, be sure to cross out the adjustment of status language in question 22 of the I-130 and clearly indicate that the petition is to only be sent to designated embassy abroad. Attaching a statement further explaining your plans to pursue consular processing for an immigrant visa obtain abroad would also be strongly suggested. This is no discretion in the approval of the I-130 petition, the petition approval only confirms that the qualifying relationship is approved and that the petitioner and non-citizen are not on any immigration or FBI blacklists and the non-citizen may proceed with applying for an immigrant visa abroad or adjustment of status within the U.S.

Thanks! The first hurdle will be getting another B-2. His current visa is expiring in May. I've written a letter to the Consular Officer, as I did last time, explaining that in the future I plan to file an I-130 and we have no intention of jeopardizing that by my husband overstaying his I-94. He can show very strong ties to his country. In fact, he has been there the last year establishing a thriving business that has contracts with the government while I live alone in a third country.

I've decided to wait until he arrives in the US before I file the I-130, partly for the reasons you point out, but also because at this point in time, it will just be easier for me. I have so many other things to worry about with moving back to the US after 12 years abroad, working full time, and raising our child alone.

If I manage to get anything together to send off to Chicago, it wouldn't be until about a month or 6 weeks before he tries to enter the US anyway. How quickly does the beneficiary get entered into the system so that his name might pop up at the POE? Nevermind, I'd rather just trust USPS over China Post anyway.

I think I know where you may have heard this rumor from now, and I'm surprised no one else here figured it out.

For Fiancee (K-1) visa petitions, an I-129F petition may not be approved if:
1) The petitioner has previously petitioned for a K-1 visa for two or more different persons, or
2) The petitioner received a previous I-129F approval less than 2 years ago.

These restrictions do not apply to I-130 petitions, nor to re-applying for a K-1 visa for the same person after a prior denial.