Travelling on tourist visa whilst waiting for I-130

[gameyy 1]

I have a related question to this (after reading through this thread it doesn't seem to have been brought up):

 

My wife (South Korean) and myself (USC) recently had to flee a foreign country due to the pandemic. Since we had no time to file for a B2 visa, she entered on an ESTA. Ideally we would like to live here in the US together. We would eventually like to file for the IR1 visa for her to stay permanently, but we don't want to process the request while here since we cannot change her VWP. So we will need to return to Korea first to get the B2. My question is, would it be possible for us to apply for the B2 and also try to start the CR1 process while there, or should we start the CR1 at a later time in Korea?

 

Any help would be much appreciated, a friend recently sent me this website and it has been a wonderful resource. Thanks in advance!

[Jens79 64]

ESTA or B2 make no difference in your case. Most of the times it makes very little sense to apply for a B2-visa if you’re from a VWP-country (like S Korea). There are basically no additional benefits with a B2 over ESTA/VWP, apart from being able to stay for 180 days instead of 90, and staying that long when visiting your husband is not recommended anyway. And non of them are for immigration purposes, so in your wife’s case it makes no difference. B2 seems pointless for your wife. (Also, you can only apply for and have one visa at a time. When you’re granted a new visa the visa you already have is automatically cancelled. If you for some reason need a B2-visa (again, unclear why) you have to get that visa approved before applying for any other visa.)
 

What matter for you is if you two had any intent of your wife staying permanently in the US when she entered the country or not. If that was something you had already been planning on, then it will mean you are committing immigration fraud if you apply for a green card (adjustment of status) for her (now). She obviously didn’t tell the CBP officer that you were planning to do that, because if she had done so, she would have been refused entry.

 

If this is the case, the legal route for you is that your wife goes back to South Korea (or where ever she want and legally can stay, as long as it’s outside the US, really) and then apply for a CR-1/IR-1- visa. Before the Corona outbreak the processing time for such visa was usually around 12-13 months, most probably longer now. It’s OK to come back to the US for temporary visits on ESTA during the wait. 
 

However, if you had no intention whatsoever for her to stay in the US permanently at the time of entry to the country, and these ideas come up later, when she was already in the country, then you have not committed any immigration fraud and it’s OK to file for adjustment of status. No additional visa is required (no need for a visa since she’s already here). She will get to stay in the US during the process, but can’t leave until her green card (or a separate travel grant, called advanced parole, is granted). 
 

When you apply for AOS when entered on ESTA they will look at the individual circumstances to make sure that you didn’t have immigration intent when you entered the country. You will need to explain why you suddenly decided that you (your wife) wanted to stay and why that wasn’t planned before she came here.

While it’s legal to do so, as described above, the burden on you to show that you didn’t have immigration intent may be hard to overcome. The safer way in that case would be to start the immigration process by applying for the CR1/IR1-visa from S Korea.
 

Best of luck!

Edited August 9, 2020 by Jens79