QUESTION
Can a person enter as a tourist and then file the I-130 in the US?
Asked on Mar 24th, 2012 on Immigration - California
More details to this question:
I am an American citizen married with two children to a Spaniard for 6 years and we have been living here in Spain. We want to move back to the US. Can he enter as a tourist and then we can file the I-130 there? He will be on a VWP so we will not be officially violating a visa. Our friends were told at a consulate that it was legal to enter and start the paperwork there, we have read the opposite. What should we do?
10 ANSWERS
Only after they have been here for at least 60 days, and their initial intent on entry was NOT to obtain residence.
Answered on Mar 28th, 2012 at 4:24 PM
Immigration Law Attorney serving Los Angeles, CA
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Law Offices of Alan R. Diamante APLC
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It can be done. However, he will not be allowed to enter the U.S. on the VWP if an officer believes he has the intent to stay permanently in the U.S.
Answered on Mar 27th, 2012 at 11:21 PM
Assault Attorney serving Richardson, TX
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Entering is for him is risky as he will have to state that he does not wish to remain in the states. As this is not true, he will be at risk of deportation and a bar to return.
Answered on Mar 27th, 2012 at 11:11 PM
U.S. Immigration and Nationality Law Attorney serving San Diego, CA
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Your spouse may not enter as a tourist/VWP with the intent to file here. However, if he comes as a normal tourist and later decides to process, it is possible. You should contact an immigration attorney to review these specific issues.
Answered on Mar 27th, 2012 at 4:43 PM
Yes, it is possible but it has to be strategized correctly because otherwise, there is a chance that your husband will be deemed to have made a fraudulent misrepresentation about his intent at the time of entry to the US as VWP.
Answered on Mar 27th, 2012 at 1:44 PM
Immigration and Naturalization Attorney serving San Francisco, CA
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If a person enters the US on the VWP or B visa or any visa really, with the intent to remain in the US and apply for a green card here, that is considered immigrant intent. The status will be denied for that reason and he can be barred from future entry for 5 years or more. In that instance, the person should consular process for the green card which takes about 9-12 months.
Answered on Mar 27th, 2012 at 11:48 AM
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The proper way is to file I-130 petition while you are all in Spain. After I-130 approval, he will go to the local US consulate to get an immigrant visa to come to US.
Answered on Mar 27th, 2012 at 11:23 AM
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Your husband may be denied a tourist visa because of his marriage to you unless you can convince the US Consul that you do not intend to remain in the US. You can file the I-130 now and he can then apply for an immigrant visa at the US Embassy.
Answered on Mar 27th, 2012 at 11:22 AM
Relying upon legal advice that you understand your friends to have received at a consulate is fraught with risks, and there really is no substitute for engaging an immigration attorney. It is unlawful for someone to enter the U.S. on a visitor's visa or through the Visa Waiver Program while intending to adjust status to become a U.S. Permanent Resident. The consequences for a violation can be very harsh, including penalties for "visa fraud." Instead, a spouse of a U.S. citizen should use consular processing in the "Immediate Relative" visa category to be able to enter the U.S. and seek Permanent Resident status.
Answered on Mar 27th, 2012 at 11:17 AM
Immigration Law Attorney serving San Francisco, CA
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Richard S. Kolomejec
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Yes but you need to be very careful. His intention needs to be genuine. I would recommend consulting with an experienced immigration attorney. If it's done right, the entire process will only take 3 to 4 months.
Answered on Mar 27th, 2012 at 11:17 AM