Applying for a B2 Visitor Visa while your Marriage Based I-130 is Pending Via Consular Processing
The purpose of this article is to provide guidance to people wishing to apply for visitor visas while their immigrant cases for Green Cards are processing. Because the US Consulate denial rates are so high for people who apply for visitor visas while their Form I-130 petitions are pending, our law firm does not offer B1/B2 visa application services. We only provide services for Form I-130 filing and all other Green Card petitions for spouses based on marriage and for eligible family members. Most people living abroad hire local services to apply for a visitor visa at their nearest US Consulate.
What is a B2 visa (Non-Immigrant Visa)
The B-1/B-2 visa is a non-immigrant visa that allows the holder to visit the United States for business or tourism.
B visas cover many reasons for temporary non-immigrant travel to visit the US. The B-1 visa would therefore be used for vacations to the US or family visits.
What is an I-130 petition? (Immigrant Visa)
The first step in assisting a family member who is eligible to immigrate to the United States and receive a permanent resident card is to file Form I-130. A Form I-130 is usually approved if the beneficiary (foreign national) and US Citizen/Permanent Resident family member can show that they have a legal relationship that qualifies them to immigrate to the United States. The filing or approval of this petition alone, does not confer any immigration status or benefits on your family member, but this is the first step in applying for a Green Card.
When the beneficiary (foreign national) lives outside the United States and their US Citizen/Permanent Resident relative has filed an I-130 for them with United States Citizenship and Immigration Services at their US-based offices, this petition process is called “consular processing,” because after the I-130 is approved and all US Department of State clearances have been made, the actual Green Card approval will be issued at the US Consulate office in the beneficiary’s home country.
The act of filing an I-130 reveals to USCIS, that the beneficiary has an intent to immigrate to the United States. Therefore, when an I-130 beneficiary applies for a non-immigrant visa, things can get pretty complicated
How to get a Visitor Visa for the USA?
Getting a visitor visa to the USA is subject to the local consulate’s approval. Each applicant must have a valid passport, submit the application form, pay the fee, and appear for the visitor visa interview at the nearest applicable US consulate in their country.
Quick Facts about USA Visitor Visa
A visitor visa or tourist visa is also known as a B1 or B2 visa for the USA.
A visitor visa is subject to approval after an interview. You have to apply for and get the visitor visa stamped in your passport.
A tourist visa is granted for a specific purpose only, like tourism, medical treatment, etc. The person entering the United States on a visitor visa should not be involved in study, business, or work. If the purpose of your trip is business, you must apply for a US Business Visa (B1 Visa) instead.
The maximum length of stay in the US on a visitor visa is usually 6 months even though the visa sticker in their passport is approved for a maximum period of ten years.
Why is it difficult to obtain a B2 visa while an I-130 is pending?
Everybody has the right to apply for a visitor (B1/B2) visa, however, it is always up to the discretion of the interviewing officer whether they will approve the visa. A denied visa does not affect your pending I-130 petition. However, it’s imperative that you answer all questions truthfully. A lie may impact your ability to obtain a green card in the present, and many years into the future and may even prevent you from ever immigrating to the US if questions are not answered honestly. When applying for your B1/B2 visa, it’s important for you to establish that you:
Plan to stay for only a temporary period of time and that the travel to the United States is solely for recreational purposes (no business or income generating purpose);
Have binding ties to your home country that prove that you intend to return; and
Have adequate cash to pay the cost of the trip to the United States, as well as all living expenses while in the United States and the return journey home.
By presenting as much evidence as possible, you can successfully obtain a visitor visa despite having a pending I-130 petition, but the BURDEN IS ON THE APPLICANT TO PROVE THAT THEY WILL NOT OVERSTAY THEIR VISA AND THAT THEY WILL RETURN BACK TO THEIR HOME COUNTRY TO CONTINUE IMMIGRANT VISA PROCESSING. This is the main reason that most applications for the visitor visa get denied. The officer will presume that you want to overstay just because you have an I-130 pending as the I-130 declares immigrant intent.
Usually, the most challenging point to prove is that the applicant has (1) binding ties to their home country; (2) that you intend to return and (3) you have no intent of overstaying and adjusting your status in the US.
Examples of documents that you can show to demonstrate these points are as follows:
Birth certificates of your minor children who live in your home country—to prove that you will return home;
Letter from your employer as evidence that you have only been granted temporary leave and that you are expected back at work;
School registration documents showing that you are due back at school;
Financial obligations and liabilities—to prove that you will return to meet these obligations, e.g., property ownership or business ownership;
Large bank balance/investments—to prove that you are not abandoning your home country as you have much invested there; and
Pension or other source of monthly income that you receive and would risk relinquishing if you didn’t return to your home country.
Because the interviewing office may be cautious about offering a visiting visa to someone who has already applied for an immigrant visa, it's critical to be well-prepared and aware of what to expect during the interview and at the Point of Entry.
Important: Keep in mind that these factors have to be presented to convince the US Consulate Officer who will be interviewing you, that you will not overstay your visitor visa. Once you land in the US on your approved visitor visa, you should also be prepared to convince the US Customs & Border Patrol (CBP) Officer of the same points if they become suspicious of your reasons for entering the US. The burden remains on you to convince the immigration authorities that you only have non-immigrant intent on your visit to the United States while your I-130 is pending.
Can you visit the US while your I-130 is pending?
You do not need to reapply to enter the US if you live in a country that participates in the visa waiver program (ESTA) or if you currently have a valid visitor visa in your passport. If neither of these situations apply to you, you must apply for a B1/B2 guest visa.
If you've already been granted permission to enter the United States, you should plan on being prepared when going through the port of entry at the airport. You will be required to present documentation and perhaps participate in a brief interview with a Customs and Border Protection official at this time. There's always the possibility that your pending immigrant visa application (form I-130) will prevent you from entering the US.
It is a good idea to have a "pocket letter" from your immigration attorney with you when seeking to enter the US as a future intending immigrant (once you've made it to the airport or other Point of Entry). This type of letter can assist you clarify the objective of your trip to the border officer and address any potential inadmissibility issues that may prevent you from entering the nation. The letter should be short and direct as a CBP official is not likely to read a long and detailed letter. The letter should be accompanied by proof that you collect proving your attendance at the event or the reason for your trip.
When the reason of the travel is questioned, pocket letters are often written to the visa applicant rather than the border officer. The letter describes the trip's objective and timetable, as well as the conditions the applicant must meet in order to acquire their immigrant visa; for example, "As you know, your immigrant visa interview was recently planned for August 15th, 2021. You must return to Mumbai at least two weeks before this date to complete your medical exam.”
Although the visitor visa application procedure is straightforward, getting the visa is more difficult than you would think. A startling majority of visitor visa applications are denied by the US State Department via its consulates across the world. As a result, it's critical to comprehend the requirements.
What are the risks of applying for a B2 visa?
The US government is concerned about ensuring that people utilize their visas exclusively for the purposes for which they were issued and that they do not overstay their allotted stay (typically listed on Form I-94), which is normally no more than six months for tourists.
When you arrive at the port of entry into the United States, the duration of your stay will be determined. If you need to stay longer in the United States, you can seek for an extension of up to six months, but if you stay longer than this (a total of one year), you will be considered to have overstayed your tourist visa and may face harsh immigration repercussions.
However, these penalties are insufficient to deter many individuals from overstaying their visas, and the US government does not want to have to track down overstayers all of the time. That's why, regardless of the type of visa they seek for, US immigration officials are entrusted with a security function, ensuring that persons who pose any kind of risk to the US are not permitted access in the first place.
When looking at the list of materials required for a tourist visa in the United States, some applicants are tempted to simply lie or conceal some facts. They may, for example, deny having a prior criminal record or having U.S. citizen family members in the country. This is, however, visa fraud, which will result in a refusal if detected.
If your records expose prior falsehoods about U.S. visas you have asked for or earned, fraud might become an issue in the future. Find out what happens if you provide inaccurate information on an immigration application.
Generally speaking, a B2 visa denial (absent any fraud or misrepresentation) should not prejudice your application for a Green Card.
What documents should you take to increase the chance of obtaining a B2 visa while the I-130 is pending?
Step 1: Take a digital snapshot of each candidate.
When applying for a US visiting visa, a digital image is necessary. Certain requirements must be met in order for the image to be accepted. If you indicate that the photo is needed for a US visa, a reputable photographer or studio can acquire it.
The digital photograph must meet the following requirements:
The digital photograph must be a square.
The minimum dimensions must be 600 pixels by 600 pixels.
Maximum dimensions must be 1200 pixels by 1200 pixels.
The image must be in color (24 bits per pixel).
The image must be in the JPEG format (.jpg or .jpeg file extension).
The file size of the image must be less than or equal to 240 kilobytes.
See the complete photograph requirements for a visitor visa.
Please Note: Some embassies or consulates no longer require you to upload a digital photograph while filling out the DS-160 form. In such cases, the photograph will be taken at the OFC (offsite facilitation center) or ASC (Application Service Center) along with the fingerprint at the Visa Application Center.
Step 2. Complete visitor visa application form DS160
Visitor visa application (form DS160) must be completed online, over the Internet. You can complete the application here.
After successfully completing the application, you will receive a confirmation with a 10-digit barcode. Take a printout of this page. This will be needed for setting up your visa interview appointment.
Step 3. Pay the visitor visa application fee
The fee can be paid either electronically as a bank transfer or in cash at designated Citibank or Axis bank branches throughout India. In order to ensure the proper amount is paid and activated in a timely manner, first create a profile at US Visa Service website and choose the Schedule Appointment option. On the payment confirmation screen, you will be presented with payment options and further details of how to initiate payment. The fee is good for a year from the date of payment. You must make an appointment within a year for your visa interview.
Step 4. Make appointment for a visa interview
After you pay the fees, you will have to schedule 2 appointments as part of the visitor visa process. The two-part appointment process consists of an appointment with one of the five Offsite Facilitation Center (OFC) to give Biometrics information that includes fingerprinting and photograph, and second an appointment with the Consulate or Embassy for a personal visa interview.
Step 5. Visitor Visa Fingerprinting at Visa Application Center (VAC)
After making an appointment with the consulate or embassy for a personal interview, schedule the fingerprinting appointment at least a day or two before the interview at the consulate. Earlier, the fingerprints were taken during the personal interview. But under the new rules, you are required to give the Biometrics information at the VAC appointment. This measure has been introduced to reduce congestion at the US consular facilities and to speed up applicant processing. Schedule the visa interview appointment at the Consulate or Embassy prior to the VAC appointment.
Step 6. Go for a visa interview at the designated US consulate
On the day and time of your appointment for an interview, go to the consulate where your interview is scheduled. Carry all mandatory and supporting documents and originals.
Carry the following to your interview:
Your passport (and your old passports if any)
Your photograph
The DS160 Confirmation page is stamped at the VAC.
Visa application fee receipts (if applying at a US consulate in India)
Interview Appointment letter
Supporting documents.
How can I convince the US Consulate to give me a visa?
Under United States law, all applicants for non-immigrant visas are viewed as intending immigrants until they can convince the consular officer that they are not. You must therefore be able to show that you have reasons for returning to your home country that are stronger than those for remaining in the United States.
"Ties" to your home country are the things that bind you to your hometown, homeland, or current place of residence (i.e., job, family, financial prospects that you own or will inherit, investments, etc).
Anticipate that the interview will be conducted in English and not in your native language. One suggestion is to practice English conversation with a native speaker before the interview. If you are coming to the United States solely to study intensive English, be prepared to explain how English will be useful for you in your home country.
If you are not able to articulate the reasons you will study in a particular program in the United States, you may not succeed in convincing the consular officer that you are indeed planning to study, rather than to immigrate. You should also be able to explain how studying in the United States relates to your future professional career in your home country.
Applicants from countries suffering economic problems or from countries where many students have remained in the United States as immigrants will have more difficulty getting visas. Statistically, applicants from those countries are more likely to be asked about job opportunities at home after their studies in the United States. Also, some US Consulates that experience more fraud than others will likely only give you about a couple of minutes to make your case. These Consulates approach most visa applications with suspicion.
Applying for a B2 visa is challenging enough to begin with. However, applying for one with an immigrant case pending makes it even more complicated. Although there is no rule on the books that forbids the issuance of the B2 visa to someone who has an I-130 pending, it is not something that consulate officials are used to doing. On the other hand, it’s very understandable that the beneficiary would want to visit their Petitioner in the US while the case is pending because they miss them and may also have to see how things are in the US so they know how to make logistical decisions, such as packing. If you really want to try to apply for a visa, be honest and creative!
Khunkhun Law does offer legal services to those looking to apply for family-based immigration petitions such as those based on marriage by filing Form I-130. We do not, however, provide services for visitor visa applications since most people living abroad hire local services to apply for the visitor visa at their nearest US Consulate.
Over the years, we at Khunkhun Law have helped countless individuals obtain and keep their Green Cards. Retaining one of our attorneys will ensure that your case is in the right hands, as we offer a customized approach to each case.
To get in touch with one of our attorneys, you can call us, email us at info@khunkhunlaw.com or review other options to get in touch with us for an immigration consultation.