Apply for spousal visa or continue on visitor visa for the usa

[sara..... 371]

Someone close to me is getting married to an Egyptian working rotation in Iraq he holds a PHD in engineering

anyway their confusion is........he will be working there on rotation for the next three years.......he has a ten year visitor visa for the states that has two years left on it....

should they file spousal visa? if they do how will that work out with his working over seas? that is what they want to file

or should they just continue with him coming and going on his visitor visa until its runs out then start the process?

this is the best place i know to get good advise

sara

[canadian_wife 1,791]

File the spousal visa when he is ready to immigrate to the US.

good luck

[sara..... 371]

thanks for the fast response

one more questions how likely is it that they would give him another visitor visa after his two years are over that he has left on it beings they will be married?

sara

[lost_at_sea 995]

Yes, I agree. Keep using the tourist visa, then file the I-130 for spousal CR-1/IR-1 nearer the time when he's ready to settle in the USA. I'd encourage them to file the I-130 at least a year before they want to live in the US, though.

[sara..... 371]

that was what i said but wanted to check with the people that know more than i do

[slvrfx576 15]

If the couple is already married then it can be considered to be visa fraud to enter on a non-immigrant (visitor) visa. This is a gray area, subject to the interpretation of the CBP officer at the Port of Entry, but in my opinion is not worth the risk of a 10 year ban on entry to the US. If you want to risk the spouse entering on a visitor's visa be sure to have him bring proof of intent to return overseas....return flight ticket, proof of job overseas, proof of residence and long term ties to the country from which he is originating.

Strictly my opinion, but I doubt he would be able to get a new visitor's visa if he is married to a USC who is domiciled in the US.

[lost_at_sea 995]

If the couple is already married then it can be considered to be visa fraud to enter on a non-immigrant (visitor) visa.

This is wrong. There is nothing fraudulent about visiting the US on a tourist visa for the purposes of tourism whilst being married to a USC who happens to live in the USA. The fraud is when you enter the US on a tourist visa with the intent to illegally stay in the USA (i.e. having immigrant intent). The OP is not intending to immigrate yet - simply visit until they are ready to live together in the USA, upon which, they will file the correct petition for spousal visa.

He would not get a 10 year ban at POE. Worst case, he is turned around at the border and put back on the plane.

[slvrfx576 15]

This is the response I got from an immigration attorney when I asked a very similar question last fall:

There is nothing in the law that says she may not enter the US with a pending I-130 but the burden is on her to convince the custom's inspector at the port of entry that despite the I-130 pending she is not immigrating on this trip and has the intent to return.

Here is the law:

Section 214(b) is part of the Immigration and Nationality Act (INA). It

states:

Every alien shall be presumed to be an immigrant until he establishes to

the satisfaction of the consular officer, or at the time of application for

admission, that he is entitled to a nonimmigrant status...

So she needs to carry with her evidence that she holds a job that she will return to, owns property there, has financial ties and otherwise has compelling reasons to go back and not file for adjustment of status while she is here.

The burden is on her and having the visa in and of itself is no guarantee she will satisfy the inspector at the POE.

The risk? If it is a nasty inspector having a bad day they could administratively remove her for trying to enter as an immigrant without an immigrant visa and that would put a 5 year bar on her coming back to the US without a waiver, even with a CR1.

[pushbrk 12,137]

If the couple is already married then it can be considered to be visa fraud to enter on a non-immigrant (visitor) visa. This is a gray area, subject to the interpretation of the CBP officer at the Port of Entry, but in my opinion is not worth the risk of a 10 year ban on entry to the US. If you want to risk the spouse entering on a visitor's visa be sure to have him bring proof of intent to return overseas....return flight ticket, proof of job overseas, proof of residence and long term ties to the country from which he is originating.

Strictly my opinion, but I doubt he would be able to get a new visitor's visa if he is married to a USC who is domiciled in the US.

Not true at all, with regard to visa fraud for entering with a visitor visa, particularly when entering for a "visit". It's unlikely he'll be able to get a new visitor visa though because the application process requires disclosure of the fact he's married to a US Citizen. That alone will indicate immigrant intent and usually, disqualification for a new visitor visa.

[sara..... 371]

so what would happen if they apply for the spousal visa and he comes and goes as his job allows on the rotation? would the two year green card expire at the end of two years and not be able to receive the ten year green card because of him not living full time in the states? would they have to start all over again?

loads of questions but i knew this was the best place to find the answers

sara

[stevie b 141]

the green card needs to be active on a continuous basis .. meaning the holder of the green card must live in the states more than six months a year, otherwise the green card expires

[slvrfx576 15]

I'll stand by what my attorney wrote....there is risk, although it may be small. When subject to the caprices of the agent on duty at POE, there is always a risk.

[lost_at_sea 995]

I'll stand by what my attorney wrote....there is risk, although it may be small. When subject to the caprices of the agent on duty at POE, there is always a risk.

...a risk of not being allowed in. Attorneys are scare-mongers.

[lost_at_sea 995]

so what would happen if they apply for the spousal visa and he comes and goes as his job allows on the rotation? would the two year green card expire at the end of two years and not be able to receive the ten year green card because of him not living full time in the states? would they have to start all over again?

loads of questions but i knew this was the best place to find the answers

sara

If you don't maintain US residence, the green card can be taken away.

[slvrfx576 15]

Yes, attorney's can be scare mongers, but if there is any risk at all, the OP deserves to know it.