I-130 still pending, Spouse B1/B2 Visitor Visa Expires in 45 days? To Extend or Not to Extend?

[Mo007 3]

Spouse entered US with a B1/B2 visa about 4 months ago, got married and I filed I-130 for spouse while she was still in the US.

If I-130 doesn't get approved before her visitor visa expires, will the USCIC deny extension or grant it if spouse submits a request for extension?

What's the best route to avoid complications for spouse's visitor visa and the pending petition? preferrably without the spouse going back to her home country.

Thank you.

[NikLR 13,220]

***moved to working and travel during immigration from IR1/CR1 progress reports***

[cyfed 0]

It is never a good idea to enter US with a b1/b2 visa when you intend to adjust status later. Find a good lawyer to know your options. But, check out information for K-3 visa first. http://www.travel.state.gov/visa/immigrants/types/types_2993.html

[austex 42]

I didn't thnk the K3 visa was still around. I thought it was obsolete.

M.

[Mo007 3]

My wife plans to go back to her country... not sure why this would be a K-3, and not CR-1. She is not intending to violate her visa, or apply for adjustment of status within the US. She will be going back to Australia and wait for her CR-1 interview there.

Edited August 7, 2013 by Mo007

[cyfed 0]

K-3 visa is not obsolete. As stated at the website, "This visa category is intended to shorten the physical separation between the foreign-citizen and U.S. citizen spouses by having the option to obtain a nonimmigrant K-3 visa overseas and enter the United States to await approval of the immigrant visa petition." K-3 visa is a non-immigrant visa BUT it is different from most of other non-immigrant visas in the way that it allows the applicant to have an intention to live permenantly in the US. When a person apply for b1/b2 or F1 visas, he or she will be denied the visas if he or she is found to have the intention to immigrate.

Anyway, weigh the processing time involved to get this visa. If it takes as long as getting a green card, then just wait for the green card.

[Mo007 3]

K-3 visa is not obsolete. As stated at the website, "This visa category is intended to shorten the physical separation between the foreign-citizen and U.S. citizen spouses by having the option to obtain a nonimmigrant K-3 visa overseas and enter the United States to await approval of the immigrant visa petition." K-3 visa is a non-immigrant visa BUT it is different from most of other non-immigrant visas in the way that it allows the applicant to have an intention to live permenantly in the US. When a person apply for b1/b2 or F1 visas, he or she will be denied the visas if he or she is found to have the intention to immigrate.

Anyway, weigh the processing time involved to get this visa. If it takes as long as getting a green card, then just wait for the green card.

Thanks. It looks like I-129F is the application that triggers the K3 visa process. By the time they approve the I-129F, the I-130 could be approved - causing the I-129F/K3 visa to be obselete. One would assume that in this case, when my spouse's I-130 has been pending close to 3 months (I-130 approvals are now averaging 7 months), the I-129F application could take more than 4 months to approve, which would make it insignificant when NVC gets to it.

The million dollar question is, is $340 worth to take a chance on a K3 visa that could end up being a moot end point?

Ultimately, I would like my wife to go back to her home country before her visitor visa expires, and visit me again on her multiple entery visa for another 6 months, even if the I-130 is still pending. Can this work? or will USCIS deny her entry back to the US since there is I-130 pending application is in the system?

Edited August 7, 2013 by Mo007

[cyfed 0]

Good news: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=a10e4154d7b3d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

If you have filed I-130, it is free of charge to file I-129f for your sweetheart.

Bad news: She'll, very very likely, encounter difficulty if she tries to enter on her current b1/b2 visa.

[Mo007 3]

Good news: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=a10e4154d7b3d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

If you have filed I-130, it is free of charge to file I-129f for your sweetheart.

Bad news: She'll, very very likely, encounter difficulty if she tries to enter on her current b1/b2 visa.

We narrowed my spouse's options to 3:

1. an extension on her b1/b2visitor visa, I-539 form.
2. do the K3 route, I-129F form. (which many have suggested)
3. have her go back to her home country and re-enter the US with her multiple entry visitor visa for another 6 months? (which is risky).

Not sure which of the 3 options would be best for my spouse.

[cyfed 0]

We narrowed my spouse's options to 3:

1. an extension on her b1/b2visitor visa, I-539 form.
2. do the K3 route, I-129F form. (which many have suggested)
3. have her go back to her home country and re-enter the US with her multiple entry visitor visa for another 6 months? (which is risky).

Not sure which of the 3 options would be best for my spouse.

#1 won't work, I'm afraid. Because she intends to live here permenantly, an extension of tourist status is not likely to be granted. It seems that, in my opinion, a trip back home is inevitable.

[Mo007 3]

#1 won't work, I'm afraid. Because she intends to live here permenantly, an extension of tourist status is not likely to be granted. It seems that, in my opinion, a trip back home is inevitable.

Well option #1 (extension option) by the definition triggers a 240 days grace period rule. I take it that once spouse has submitted the extension, she is covered for 240 days or until she receives a decision. No?

[newacct 688]

Are you a U.S. citizen or permanent resident?

[Hypnos 6,576]

Unless USCIS determine that the extension request was frivolous, in which case overstay begins to accumulate from the day the I-94 expired, not the date of denial.

Any B-2 extension request you file is unlikely to be granted, given that she has been here for four months already and, in general, tourists are meant to spend more time outside the US than inside of it.

The K-3 visa is obsolete and will likely never make it past the NVC level, although you are of course free to attempt it.

She is highly unlikely to be re-admitted again if she tried to leave and then return immediately. If she was admitted, it would likely be for a handful of weeks, at best.

Edited August 7, 2013 by Hypnos

[Mo007 3]

Are you a U.S. citizen or permanent resident?

US citizen.

How long does it to process an extension application? By then I-130 should be approved... ??

[newacct 688]

If you didn't want spouse to go back to the home country, why didn't you just file I-130 and I-485 together? It makes no sense to file I-130 separately. And anytime now, you can just file I-485. Why deal with all this extension stuff?