With my I-130 pending, will I have trouble getting a tourist visa to the U.S.?

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Question:

My U.S. permanent resident wife filed an immigrant visa petition to eventually bring me to the United States. However, I am living abroad, and am still waiting for my visa to become available. I miss my wife terribly and I want to visit her, but I was told that because I have an I-130 pending, the U.S. government will have a hard time believing that I would return home, and may turn me away. Is this true?

Answer:

It depends, but a denial is by no means inevitable. Plenty of people with pending immigrant visa petitions have successfully traveled to the U.S. on a B visitor visa or, if eligible, on the Visa Waiver Program (VWP). Others have been denied the opportunity to visit because the consular officer or border official determined that they did not present sufficient evidence that their stay would only be temporary.

Unfortunately, the Form I-130, Petition for Alien Relative filed on your behalf reveals that you intend to live permanently in the U.S. at some point in the future. As a result, noncitizens with pending I-130 petitions who want to visit the U.S. face greater scrutiny when applying for a B-2 visa at a U.S. embassy or consulate or from Customs and Border Patrol (CBP), if traveling on the VWP. In the worst-case scenario, this means that you could fly all the way to the U.S. only to be turned back by CBP.

This is why it is essential that you bring as much documentation as possible to show that you:

  1. have binding ties to your home country that prove that you intend to return
  2. plan to stay for only a short time, and
  3. can pay for your living expenses during your U.S. trip.

For more information about the types of documents you can use to apply for a B visa or demonstrate VWP eligibility, see “Visiting the U.S. for Business, Pleasure, or Medical Treatment.”

There are other factors that might tilt the scales in your favor or against you. If you have a clean immigration history and criminal background and there is evidence that you traveled to the U.S. in the past without incident, you may have an easier time when you are interviewed or inspected.

The reverse is also true, so if you overstayed a visa in the past or got in trouble with the law, you probably will face difficulty. If you are from a country with a high rate of visa denials or citizens who overstay their visas, you will likely encounter an uphill battle, where people from “less suspect” nations might face fewer hurdles.

If you are worried, you should consult with an immigration attorney who can best advise you on how to proceed based upon your individual situation.

Also, if you are eligible for the VWP and you are nervous that you might be turned away by CBP because of your pending immigrant visa petition, you might want to apply for a B visa instead for the added assurance that you won’t be turned away at the border after doling out the expenses for your trip. However, keep in mind that CBP can always override a visa decision.

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