With I-130 Pending, Will I Have Trouble Getting a Tourist Visa to the U.S.?

It's not uncommon for non-citizens whose family members have filed family-based immigrant visa petitions on their behalf (Form I-130) to want to visit the United States while they wait for the process to finish up. After all, with annual limits on many categories of immigrant visa, long wait are common. Be aware, however, that because you have an I-130 pending, the U.S. government might have a hard time believing that you will return home after a U.S. visit, and turn you away. This article will explain the details.

Your Intention Counts When Applying for a Nonimmigrant (Temporary) U.S. Visa

There's a reason why, in applying for any temporary or "nonimmigrant" visa to the U.S., it is essential that you bring documentation to the U.S. consulate to show that you:

1. have binding ties to your home country that indicate that you intend to return there
2. plan to stay in the United States 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.)

Basically, the U.S. wants to know that you're not using the temporary visa as a foot in the border-door while having the secret plan to stay permanently. Such a hidden intention would be considered visa fraud, and could permanently destroy your hopes of visiting or living in the United States.

That's why having an eventual right to a green card, but possibly in a category subject to annual limits and sometimes long waits (such as spouses of U.S. lawful permanent residents, or brothers and sisters of U.S. citizens), can complicate your U.S. travel plans. 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 or from Canada. 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.

Should You Give Up Before Trying to Apply for a Nonimmigrant U.S. Visa?

A denial of a nonimmigrant visa application is by no means inevitable, even if someone has already petitioned for you to immigrate to the United States. 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).

Canadians, who do not need a visa or visa waiver, also frequently cross the border to visit a U.S. spouse without much problem.

However, some people with a U.S. spouse or other family member who could or has petitioned for them are, in fact, denied the opportunity to visit because the consular officer or border official determined that they did not present sufficient evidence showing that their stay would only be temporary.

There are other factors that might tilt the scales either 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 might have an easier time when you are interviewed at the U.S. consulate or inspected upon arrival.

The reverse is also true, so if you overstayed a visa in the past or got into 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, whereas people from "less suspect" nations might face fewer hurdles.

What About Simply Entering on the Visa Waiver Program?

If you are eligible for the VWP, you can certainly use that to board a flight or other form of transport to the United States, without having to apply for a visa first. However, there's reason to be nervous that you might be turned away by CBP because of your pending immigrant visa petition. Because of this, you might want to apply for a B visa instead. This provides added assurance that you won't be turned away at the border after doling out the expenses for your U.S. trip. However, keep in mind that CBP can always override a visa decision.

Getting Legal Help

If you are worried about your ability to obtain a nonimmigrant visa to the U.S. with a pending I-130 petition, consult with an immigration attorney, who can advise you on how to proceed based upon your individual situation.