5 Months B2 Stay + Denial at POE--red flags?

[bbz 2]

Hi all, we're new and we already love it here. All your advice and stories made us less nervous about this visa process. We also came across some posts siting stories similar to ours, however we're still very concerned about whether our petition or visa application will denied at some point...Here's the situation, any help is appreciated.

Wife-Canadian; Husband-USC; met in 2009, married in January 2011 in Canada; filed i-130 for wife in July 2011. Throughout our relationship we each traveled several times a year back and forth between US and Canada to see one another. Using Canadian passport, wife stayed in the States from September 2011 to January 2012(there was a B2 stamp in the passport effective till February 2012). We never had any problems at POE until this January. Wife was stopped and denied entry at Buffalo NY when we wanted to go to the states together. Wife was asked to show proofs of ties to Canada and she was questioned about her 5 months stay in the States. We did not have any proofs with us because we were completely unaware that any proofs were needed (didn't read up anything on VJ yet). We were told we should always demonstrate ties to Canada while trying to visit during a pending i-130. They gave us a list of items she could bring next time to show proofs, took her fingerprints and photo, and sent her back to Canada.

A week later in February, wife tried to visit again through Toronto airport, bringing copies of condo lease, electricity bills, hydro bills, etc. Denied again pursuant to 212 (a) (7) (A) (i) (I), which we now know means "intending immigrant without immigrant visa"; signed a withdrawal of application for admission. She was told just to wait for the immigrant visa.

We will NOT make another futile attempt to persuade CBP to let her travel as a visitor, but we are worried:

1) Was the 5-months stay in the States illegal even though she had a B2 stamp on the passport, because there is an ongoing i-130 petition? She left before the B2 expired; we told the CPB truthfully what she did during the stay (taking care of mother in-law after surgery, helping family move, then spending Christmas and New Years). Are we right to think we did not break any laws, because if we did, wouldn't there be more serious consequences than just sending her back at POE?

2) If we didn't break any laws, is this still a red flag in the visa application, and would this come up during the interview? We are prepared to disclose every trip she made to the states and the 2 denied entries. Would we get denied by the consul because she spent a lot of time in the states prior to visa approval?

Any thoughts? Thanks in advance.

[rolemodel29 17]

Hi and welcome to the site. i am also a new member to the site but not at all new to your situation. I was in a situation like yours back in july 2011. a little on my story. I am the holder of a B1B2 visitor visa from the caribbean. I been dating my husband for almost 5 years during which I would travel to the US every 6 months to spend time with him. I did this because it was much easier for me to travel to the US than for him to come to my country. Back in 2008 I happen to travel 3 months after returning home from a previous 6 months visit. i was given 3 months to visit. My husband then file for me to extend my stay for a further 3 months. during this time I was of the impression that I can stay in the US until we got a responce from immigration be it favourable or unfavourable. When the responce came it was after my I94 date it was unfavourable so i departed 1 week after the date i received the letter.

We got married back in June of 2011 and after getting married we both flew back to the US together. To my great suprise when I was interviewed by the official in Miami international airport i was ask to join another short line. At this time I did not have a clue as to what was happening to me. After joining that line i was taken into a room where i was further questioned about my travel back in 2008. I had to explain that i did not see there was a problem because i did not intentionally over stay my I94 i applied for an extension on which i was denied. that was when i realised that even though a B1B2 visitor is extending their stay they cannot stay ion the US while the I94 date is passed. Well I did not argue i just listened. later I had to explain to them i just got married to my USC husband and we were about to go on our honeymoon hence the reason I am in the US now. they were very understanding and a bit saddened to the fact that my honeymoon is now ruined, but they got to do their job. i was finger printed and had to sign a withdrawal and my picture was taken. By this time it was night time and the next flight for my country was next morning. So they took me to another part of the airport where i slept in a room and was sent on the next plane back home. To date my USC husband filed the I-130 back in September and we are waiting for its approval. do not be afraid of what your out come would be because I dont see any problems ahead for you. You did not commit any immigration crimes neither have you broken any laws. all you did was fly on a visa while you had an application in procession. Usually when flying on a visa such as the one you got they will need to know that you got ties back in your country and that you will not intend to remain in the US. Having filed the petition for intending immigrant status is a red flag for them and YES you got to return home until the filing process come to an end . Hopefully this happen on a timly basis and you return to be with your love one. Good luck and yes you will be ok because I will also be ok.

[himher 634]

(laughing) it is NOT a red flag for an immigrant to try/make all efforts to visit a spouse during the process of immigrating. This is a favorable thing.

Travelling back and forth like that with NO pending I130 would probably (actually would likely) be a red flag.

Doing it while you are already in the process looks exactly like it is - spouses spending as much time as allowed together because they are married. Unfortunately the border officers have a strict set of guidelines to follow and they must assume that your wife is an intending immigrant up front and the burden on her is to prove she is not - with married couples many times this is next to impossible to prove.

Explain it at the interview if asked but I doubt the officer will ask about it. Your wife has not done anything wrong. We got a B visa denial not long after we were married for the same reason (my wife still owned a house in her home country/no way she was not going back) and the same IO who originally denied the B vise handed my wife her passport with the K3 visa inside it with no comment once the process was finally completed.

I suspect half or more of the couples on this site probably did or experienced the same thing.

Spending as much time as possible together after getting married/properly filing for immigration strengthens proof of ongoing relationship. Only an idiot would conclude that you are circumventing the process AFTER you have already paid the fees / filed the necessary to do it correctly.

Best of luck.

[Stephen + Elisha 92]

1) Was the 5-months stay in the States illegal even though she had a B2 stamp on the passport, because there is an ongoing i-130 petition? She left before the B2 expired; we told the CPB truthfully what she did during the stay (taking care of mother in-law after surgery, helping family move, then spending Christmas and New Years). Are we right to think we did not break any laws, because if we did, wouldn't there be more serious consequences than just sending her back at POE?

No, it was not illegal. There's no law against traveling on a tourist visa / visa waiver with a pending immigrant visa petition. As long as she left before the visa expired, the 5-month stay was perfectly legal.

2) If we didn't break any laws, is this still a red flag in the visa application, and would this come up during the interview? We are prepared to disclose every trip she made to the states and the 2 denied entries. Would we get denied by the consul because she spent a lot of time in the states prior to visa approval?

No red flag. Nonimmigrant visa denials / denial of entry at POE won't affect the immigrant visa application. As you said, just be sure to disclose everything. The time she spent in the US won't lead to a denial

[bbz 2]

Wow thank you all for the great responses, didn't expect such a positive outcome! We're much relieved. Just hope the NOA2 is coming soon.

@rolemodel29 Best of luck to you!!