The Brutal Waiting Game

[maxandlaura 0]

Hello, my name is Max. I am new to this forum, however I have been a long time visitor of VisaJourney.com. I must say that this has been an invaluable resource and many of the topics posted in these forums have been incredibly helpful and uplifting throughout this entire process.

I know this topic has probably been discussed many times, but in a brief search I did not find any relatively recent discussion of it...

For the moment I will keep a long story short: My wife Laura is from Spain, I am from Boston USA. I filed our I-130 back in August and received the NOA1 in the first week of September. I immediately followed up by filing the I-129F as well, in hopes that we could get Laura here sooner rather than wait for the other to process. However, the average processing time for both forms is currently 5 months. (We're unsure what this even means, 5 months total for everything or 5 months until we will receive the next step?)

Regardless, it appears our case has been sitting "untouched" at the Vermont processing center since the beginning of October (nearly 2 months). I have since returned back to Boston, as I must work and settle a living situation for our new life.

My question: What do we risk by her coming here on a tourist visa for her legal 90 day visit?

I am hoping not to hear horror stories of deportation, because as far as I understand it is completely legal for her to come on a tourist visa so long as she intends to return (which she does). However, I AM concerned that her interview or some other vital part of the process will come up while she is here and it will screw things up in the long run, further dragging out this painful anticipation and desire for a stable situation.

Again, I realize this must have been discussed before but any advice or direction that could be offered is invaluable to us at the moment. Thank you!

[CanadaLove 16]

To answer your questions: It will take approximately 5 months for the first stage of the process. Look up Loto's EZ guide to the process, it will tell you everything you need to know. You're in the queue, just sit tight till about March of next year before getting antsy for your NOA2. Your I129-F is likely not valid because from what I understand that is for a fiancee visa and you two are already married.

For your main question, as long as she brings proof of ties to Spain (lease agreement, letter from job stating when she is to return to work seem to be the best proof, not to mention a return ticket) she likely won't have any issues getting into the US. She may be asked for it by the customs official, she may not, it all depends on them. There is always the possibility that she will be denied entry.

Hope that helps, and good luck on your journey!

[coraliesolms 47]

She is more than welcome to apply for a B2 visa.. being approved or denied on that will not affect her immigrant visa application. However.. because of the immigrant visa app, it will definately be much harder to get an approved B2. She will have to show VERY strong ties to her home country, and even then they might still say no.

Keep in mind too, that even if her B2 visa is approved, she could still be denied entry at the border. It is CBP (border protection's) final say as to whether she gets in or not.

I know I sound like a doomsdayer.. but im just preparing you for all the possibilities that come with a B2 app whilst there is an immigrant visa application going on.

Good luck though, and a speedy journey through immigration.

[Nica_In_Love 98]

As far as I know Spain is under the VWP or Visa Waiver Program, so she doesn't need a visa to enter the US and can stay 90 days. When she meets with the CBP officer she has to show all proof of intent of going back to Spain in order to be allowed in the country.

And NO, it will not affect anything later on.

Good luck!

[Amy and Nick 37]

Just to clear up, the I-129 is when applying for the K3 visa right? Its likely the i-129 will be thrown out as the K-3 is a dead visa!

With regards to visiting, it wont harm your case. You just need to be prepared that IF something came up where she needed to return to Spain, you could change her flight (normally about $100 so not big bucks)

I would suggest that she flies via Dublin to go through pre-clearance there. This is what I plan to do, as it means if she is turned away, she only has a short was to fly back rather than flying all the way to the US and getting turned back!

However, im sure she'll be fine. Just make sure she takes anything showing ties to Spain. As CanadaLove stated, lease letters, employment etc.

Good luck, and let us know how it goes!!

[giamimigio 21]

i tried to get my wife a tourist visa but was denied. twice.

once they looked over her application, they asked (knowing already) if her husband was a U.S. citizen.

end of interview. denied.

[maxandlaura 0]

Yes, Spain is part of the VWP. So she can normally just enter the US as a tourist, legally for 90 days, without any prior application. I am hoping that nothing will come up while she is going through customs.

The thing is, I did not realize that it was as simple as filing for an "Adjustment of Status" after our marriage. For the past 6 months I have been weaving through the paperwork and doing all the research on my own, and obviously there is an abundance of information out there and not all of it (in fact most of it) is directed towards people working on immigration cases from countries that are more tricky to deal with when working through the USCIS system. Now, I feel like an idiot, stuck in this web of convoluted regulations that do not really apply to our situation and potentially further complicating our lives.

So my question is this: Will USCIS see this and just bypass the I-130? Can I/should I just file for adjustment of status when she arrives this time?

I have spoken with someone at USCIS and they informed me that I should have my NOA2 as of January 10th. So I do not think I will be hearing from them anytime sooner than that. However, I have been in contact with my congressman's office, and they have offered assistance with the matter. I don't know how personal they get, if they will work with my specific situation but it's some hope to know I am not alone on this. I will mention the issue to them and see if they can offer any guidance.

Again, I must express my appreciation for this forum. It feels like one of the only communities out there that can understand or relate to these feelings and actually offer valid advice...

[dvs98 2]

Well the reason all these people are here is cause were trying to do it the right way lol. The way you speak of is not so much the right way. I have heard of it being done successfully but when i also read it comes with high risk and legal ramifications. Like your SO being banned from the US etc. Someone else may be able to answer better since I'm new at this as well and never thought i would even need to know about it lol. From what i have read basically is to come to the US on any visa other than an immigrant visa to adjust status is considered fraud. Hence why we all go through this

[Amy and Nick 37]

To have her come over to you on the VWP and adjust status while the I-130 is pending is EXACTLY the reason the CBP turn people away. The whole point is that she IS only going for a visit, and she will return back to her home country within the 90 days.

IF they do not suspect you and let you in (whatever you do, DONT lie to a CBP ever. If you are found out it will come back to bite you in the rear end!) and you decide to adjust status, its is a bit of an iffy time to do it.

Do a search in the forums for AOS on VWP and you will see. Previously it was fine to do this, but the stipulatations are that she didnt plan to immigrate when she came to the US on the VWP.

IF at the AOS interview, they find that it WAS intentional, this is considered visa fraud, and if she has been in the US for more than 180 days it will result in a 3-yr ban, and if its been over 365 days, a 10-yr ban.

My advice is to follow the book on this one. Continue with the I-130 process. Its long and arduous, but we are all in the same boat and soon this journey will come to an end and we'll all be where we need to be. By all means have her come visit you, but make sure she has strong ties to her home country, and DOES leave within the allocated time!

[NigeriaorBust 4,087]

With an I130 already filed it would be nearly impossible to prove there was no immigrant intent so it would be ill advised to try to AOS if she came on a visit.

[misterbigtoe 45]

With an I130 already filed it would be nearly impossible to prove there was no immigrant intent so it would be ill advised to try to AOS if she came on a visit.

Furthermore, each and every instance of an abuse of the system as difficult or unfair as the system seems, results in incrementally clamping down with tighter and tighter regs making it increasingly difficult for those that follow. Why does anyone think the immigration regs are so difficult now? Because of the cumulative effects of small abuses over many decades.IMHO

[sachinky 465]

You're doing the right thing. Stay on that path.

Entering on a tourist visa with preconcieved intent to immigrate via adjustment of status is blatantly illegal and considered to be visa fraud. Basically, using one visa (tourism) for the express purpose of another (permanent residency). In the case of VWP, it has gotten considerably harder recently since it is considered as bypassing the visa process, altogether.

Filing for AOS on the VWP with a pending I-130 would be foolhardy as that is enough evidence of "immigrant intent."

Edited December 9, 2010 by sachinky

[maxandlaura 0]

Update:

My wife (and her cat) made it into the USA without any issues. We're currently awaiting to receive our NOA2, which we anticipate to come within the next couple weeks (according to the USCIS). I am also working with a local senator's office to keep the progress rolling on our case.

So, hopefully by the time she returns to Spain in February we will have a clearer vision of the coming months. With a somewhat more tangible timeline I hope to better plan for the future.

Thank you again for all your advice.

[sachinky 465]

Good luck and keep us posted!