I am a U.S. citizen, born and raised. I married a Portuguese here in the US in October 2016. We have been traveling back and forth between the 2 for 2 years now. He came to visit in September 2016 (he has a B1/B2 10 years visa as well as a C1/D for playing music on the cruise lines) and while attending our friends' wedding in October, we decided to "just do it". He owns a home in Portugal and has 2 children that will remain living with their mom in Portugal. I didn't file right away because he was going back for the Holidays. I want to file now; however, he, prior to coming here in September, contracted to play the summer season in Portugal and is going back in May. I will travel there 2 times before he returns to the US in September 2017. Do I need to wait until he returns and file it right after?
Generally, a foreign national who has become married to a U.S. citizen will be unable to re-enter the U.S. with a B1/B2 visitor's visa or with a C1/D visa, because immigration authorities will suspect he has "immigrant intent," i.e. an intention to remain permanently in the U.S., and immigrant intent is incompatible with those types of nonimmigrant (temporary) visas. This is true regardless of whether the U.S. citizen spouse has filed a Form I-130 application. It may be possible for you and your husband to go forward now with a marriage-based adjustment of status application process, which could include obtaining an Employment Authorization Document and Advance Parole (a "travel document") for use while the adjustment of status application remains pending. It would be wise for you and your husband to consult with an immigration attorney who, after learning all of the relevant details, including your husband's immigration-related history and immigration-related goals, would be able to advise about eligibilities, options and strategies to attain those goals.
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