Tag Archives: B-1 visa

B-1 Visitor Visa: Traveling to the U.S. for Work as a Personal or Domestic Employee

B-1 visas are issued to personal or domestic employees to accompany or follow to join their employers to the U.S. and provide household services for them. These include cooks, butlers, chauffeurs, housemaids, valets, footmen, nannies, au pairs, mothers’ helpers, gardeners, and paid companions. The employer must be a U.S. citizen living abroad, a U.S. citizen on temporary assignment in the U.S., a person in nonimmigrant status, or a lawful permanent resident.

WHEN MAY A PERSONAL OR DOMESTIC EMPLOYEE COME TO THE UNITED STATES TO WORK? 

You may work in the U.S. as a personal or domestic employee if you receive the B-1 visa for this purpose and then apply for and receive work authorization after you arrive in the country.

Personal or domestic employees may receive the B-1 visa to perform their job duties if the following special circumstances exist:

Personal or Domestic Employees of U.S. Citizens Living Abroad or U.S. Citizens on Temporary Assignment in U.S. 

B-1 visas are issued to personal or domestic employees whose employer is a U.S. citizen with a permanent home abroad or is stationed abroad and is visiting or assigned to the U.S. temporarily.

In addition, the conditions below must be met:

  • The employee has a residence abroad which he or she has no intent to abandon;
  • The employee has been employed abroad by the employer as a personal or domestic servant for at least six months prior to the date the employer is admitted to the U.S; or the employer shows that, while abroad, the employer has regularly employed a domestic servant in the same role as that intended for the visa applicant;
  • The employee demonstrates at least one year experience as a personal or domestic servant by providing reference letters from prior employers; and
  • The employee has an original contract or a copy of the contract, to be presented at the U.S. port of entry, which is signed by both the employer and the employee, and contains specific terms, such as payment of minimum or prevailing wages, whichever is greater for an eight hour work-day.

The U.S. citizen employer who is returning to the U.S. for a temporary assignment must be subject to frequent international transfers of two years or more as a job condition and the return to the U.S. should last no more than six years.

Personal or Domestic Employees of Foreign Nationals in Nonimmigrant Status

B-1 visas are issued to personal or domestic employees whose employer is seeking entry into, or is already in, the U.S. in B, E, F, H, I, J, L, M, O, P, or Q nonimmigrant status.

In addition, the conditions below must be met:

  • The employee has a residence abroad which he or she has no intent to abandon (even if the employer is in a nonimmigrant status that does not require a residence abroad);
  • The employee has been employed abroad by the employer as a personal or domestic employee for at least one year prior to the date the employer is admitted to the U.S., or if the employee-employer relationship existed immediately prior to the time of visa application, the employer shows that he or she has regularly employed (either year-round or seasonally) personal or domestic employees over several years preceding the domestic employee’s B-1 visa application;
  • The employee demonstrates at least one year experience as a personal or domestic servant; and
  • The employee has an original contract or a copy of the contract, to be presented at the U.S. port of entry, which is signed by both the employer and the employee, and contains specific terms, such as payment of minimum or prevailing wages, whichever is greater for an eight hour work-day.

Personal or Domestic Employees of Lawful Permanent Residents (LPRs)

B-1 visas are issued to personal or domestic employees of lawful permanent residents (LPRs), including conditional permanent residents and LPRs who have filed a Form N-470, Application to Preserve Residence for Naturalization Purposes.

Employment Authorization is Required

Before you begin working as a personal or domestic employee, you must file a Form I-765, Application for Employment Authorization, with USCIS following entry into the U.S. as a B-1 visitor. You need to wait for USCIS to approve the Form I-765 and issue the Employment Authorization Document (work card) to start your employment.

Source of Payment to Personal or Domestic Employees

The source of payment to a B-1 personal or domestic employee or the place where the payment is made or the location of the bank is irrelevant.

Consular Officer Responsibilities in Processing B-1 Visa Applications for Personal or Domestic Employees

The 2008 William Wilberforce Trafficking Victims Protection Reauthorization Act (WWTVPRA) requires consular officers to inform personal or domestic employees applying for a B-1 visa of their legal rights under U.S. immigration, labor, and employment laws.  This includes information on the illegality of slavery, peonage, trafficking in persons, sexual assault, extortion, blackmail, and worker exploitation in the U.S.

Consular officers are instructed, at the time of the interview, to confirm the applicant has received, read and understood the Legal Rights and Protections pamphlet.

WHO IS ELIGIBLE FOR THE B-1 VISA?

Temporary visitors must meet the following eligibility requirements:

1. Maintain a residence in a foreign country, which you do not intend to abandon

Under U.S. immigration law, the term “residence” is defined as the place of general abode, i.e. your principal, actual dwelling place in fact, without regard to intent. You must show strong ties to your country, including family connections, property ownership, investments, and steady employment. If the U.S. Consulate has doubts about your intent, you may offer to leave a child, spouse, or other dependent abroad.

2. Intend to stay in the U.S. for a specific, limited period

The period of stay must be limited and not indefinite in nature. The expected length of stay must match the stated purpose of the trip. You must show with reasonable certainty that you will leave the U.S. upon completing your visit, prior to expiration of the authorized stay.

3. Seek entry solely to engage in legitimate activities permitted by the visa

You must be coming to the U.S. only to complete activities that are allowed by your visa classification. U.S. consular officers will deny the visa and U.S. customs officers will deny your entry if they have reason to believe or know that, while in the U.S. as a visitor, you will engage in unlawful or criminal activities.

You must have the funds or an employer-employee contract to cover the cost of the trip and your stay in the U.S. Otherwise, the U.S. consular officer or customs officer could find that you will work in the U.S. without authorization to defray expenses. You may even be issued an expedited removal order at the U.S. port of entry if the customs officer determines you have previously violated your B-visa status or intend to do so.

4. Have no immigration violations or criminal offenses that make you inadmissible, or otherwise qualify for an inadmissibility waiver

You will not receive the visa or be admitted if you are barred from entering the U.S. due to immigration violations or criminal offenses that make you inadmissible under U.S. immigration law. These include the 3/10 year bar due to accrual of unlawful presence of more than 180 days during a prior stay; conviction for a Crime Involving Moral Turpitude (e.g. theft or fraud) that does not qualify for the petty offense or youthful offender exception; and willful misrepresentation of material facts to gain entry into the U.S.

When you are inadmissible, but are otherwise visa eligible, you may file a 212(d)(3) nonimmigrant waiver to be excused from almost all inadmissibility grounds. A separate I-212 waiver (Permission to Reapply for Admission into the United States After Deportation or Removal) is needed if you are barred due to a prior removal order or illegal (or attempted illegal) reentry into the U.S.

B-2 IS DIFFERENT FROM B-1

The B-1 is under the same B-visa classification as the B-2 visa (for tourism and temporary visits), but is less restrictive. You may participate in tourist activities on a B-1 visa or a combined B-1/B-2 visa, but may not engage in temporary business activities while on a B-2 visa only.

WORK WITH AN IMMIGRATION ATTORNEY

Failure to overcome the presumption of immigrant intent and show strong ties abroad is one of the top reasons for a visa refusal or denial. Inadmissibility grounds can also prevent a visa grant or your entry into the U.S.

Consult an experienced immigration attorney to assess your visa eligibility, advise you on the forms and documents to submit, and assist you with the application process to get the B-1 visa to accompany or follow to join your employer as a personal or domestic employee.

For more information, read our related articles, B-1 Visitor Visa: Traveling to the U.S. for Business and B-2 Visitor Visa: Traveling to the U.S. for Tourism or a Temporary Visit.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: pfly

B-1 Visitor Visa: Traveling to the U.S. for Business

The B-1 visa or combined B-1/B-2 visa is for nonimmigrants who seek to enter the U.S. temporarily for business reasons and tourism. To get the visa or gain entry to the U.S. on this visa, you need to show you will participate in only permitted activities.

WHICH ACTIVITIES ARE ALLOWED ON THE B-1 VISA? 

Examples of temporary business-related activities you may conduct are described below. This list is not exhaustive, but is specified in the Department of State’s Foreign Affairs Manual and other official guidance as appropriate reasons for a B-1 visa issuance.

Visitors Traveling to the U.S. to  Participate in Business Activities of a Commercial Nature

You may use the B-1 visitor visa to:

Consult with business associates and attend business meetings. Except – You may not work for or receive income from a U.S. based company.

Engage in commercial transactions/sales, such as providing exhibitions, taking orders, negotiating, and signing contracts for products that are made outside the U.S. Except – The activities must not involve gainful employment in the U.S. and must not result in pay from a U.S. based company.

Seek business investment, including to survey potential sites for a business and/or to lease a premises in the U.S. Except – You may not remain in the U.S. to actively manage the business or perform work for the business.

Attend a scientific, educational, professional, or business convention, conference, meeting, trade show or event on specific dates. Except – You may not work for or receive income from a U.S. based company.

Litigate, including to participate in a lawsuit, take a claim to a court of law, or settle an estate. Except – You may not work or receive income from a U.S. based company, although you may receive monetary awards based on a court order.

Serve as an exposition or trade show (non-government) employee of a foreign exhibitor at an international fair. Except – You may not work for or receive income from a U.S. based company.

Install, service or repair commercial or industrial equipment or machinery sold and manufactured by a non-U.S. company to a U.S. buyer, when required by the purchase contract. Except – Installation cannot include construction work, except for training or supervision of U.S. workers to do construction, and you may not receive compensation from a U.S. source.

Complete short-term training. Except – The training program should not be designed primarily to provide employment. You may not receive payment or income from a U.S. based company, other than an expense allowance or expense reimbursement related to your temporary stay.

Do independent research. Except – You may not receive any salary or income from a U.S. based source or provide benefit to a U.S. institution.

Visitors Traveling to the U.S. to Pursue Employment Incidental to their Professional Activities

You may also use the B-1 visa in the following situations:

Ministers of Religion and Missionaries

Ministers of religion may receive B-1 visas to participate in an evangelical tour, so long as they do not accept appointment with any one church and will be supported by contributions at each evangelical meeting.  B-1 visas are also granted to ministers of religion temporarily exchanging pulpits with U.S. counterparts, provided they are reimbursed by the foreign church and will receive no pay from the host church in the U.S.

B-1 visas are issued to members of religious denominations, whether ordained or not, entering the U.S. solely to temporarily perform missionary work for a denomination, as long as they do not sell articles or solicit or accept donations and will receive no pay from U.S. sources other than an allowance or reimbursement for incidental expenses. “Missionary work” includes religious instruction, aid to the elderly or needy, and proselytizing, but not ordinary administrative work or ordinary labor for hire.

Participants in Voluntary Service Programs

The B-1 is an option if you want to provide voluntary services for a religious or non-profit charitable organization, such as attend meetings, speak at a conference, or assist with an event. But you may not use the B-1 to circumvent the R-1 (nonimmigrant religious worker) visa process and live in the U.S. or work for a religious or non-profit charitable organization.

No pay must be received from a U.S. source, other than an allowance or reimbursement for incidental expenses. Certain types of volunteer services, such as construction, are also not permitted on a B-1 visa.

Members of Board of Directors of U.S. Corporation

Foreign national directors of a U.S. corporation may travel to the U.S. on a B-1 visa to attend Board of Directors meetings or perform other duties related to board membership. They may be compensated for their time and travel expenses.

Professional Athletes

Professional athletes, such as golfers and auto racers, may use the B-1 visa to participate in a tournament or sporting event and receive prize money, but cannot receive salary or income from a U.S. based company.

The B-1 visa is also issued to athletes or team members who seek to enter the U.S. as members of a foreign-based team to compete with another sports team, provided the foreign athlete and the foreign sports team have their principal place of business or activity in a foreign country; the income of the foreign-based team and the salary of its players are mainly earned in a foreign country; and the foreign-based team is a member of an international sports league or the sporting activities involved have an international dimension.

Amateur hockey players who seek to enter the U.S. for brief try-outs to join a professional team during the regular professional season or playoffs may also receive a B-1 visa. There must be an agreement with a National Hockey League (NHL)-parent team to provide only for incidental expenses such as round-trip fare, hotel room, meals, and transportation.  They cannot use the B-1 to stay and play on the U.S. team.

Horse Races

You may travel to the U.S. on a B-1 visa to perform services for a foreign-based employer as a jockey, sulky driver, trainer, or groomer. But you may not work for a U.S. employer or another employer while in the country.

WHO IS ELIGIBLE FOR THE B-1 VISA?

Temporary visitors must meet the following eligibility requirements:

1. Maintain a residence in a foreign country, which you do not intend to abandon

Under U.S. immigration law, the term “residence” is defined as the place of general abode, i.e. your principal, actual dwelling place in fact, without regard to intent. You must show strong ties to your country, including family connections, property ownership, investments, and steady employment. If the U.S. Consulate has doubts about your intent, you may offer to leave a child, spouse, or other dependent abroad.

2. Intend to stay in the U.S. for a specific, limited period

The period of stay must be limited and not indefinite in nature. The expected length of stay must match the stated purpose of the trip. You must show with reasonable certainty that you will leave the U.S. upon completing your visit, prior to expiration of the authorized stay.

3. Seek entry solely to engage in legitimate activities permitted by the visa

You must be coming to the U.S. only to complete activities that are allowed by your visa classification. U.S. consular officers will deny the visa and U.S. customs officers will deny your entry if they have reason to believe or know that, while in the U.S. as a visitor, you will engage in unlawful or criminal activities.

You must have the funds and make arrangements to cover the cost of the trip and your stay in the U.S. Otherwise, the U.S. consular officer or customs officer could find that you will work in the U.S. without authorization to defray expenses. You may even be issued an expedited removal order at the U.S. port of entry if the customs officer determines you have previously violated your B-visa status or intend to do so.

4. Have no immigration violations or criminal offenses that make you inadmissible, or otherwise qualify for an inadmissibility waiver 

You will not receive the visa or be admitted if you are barred from entering the U.S. due to immigration violations or criminal offenses that make you inadmissible under U.S. immigration law. These include the 3/10 year bar due to accrual of unlawful presence of more than 180 days during a prior stay; conviction for a Crime Involving Moral Turpitude (e.g. theft or fraud) that does not qualify for the petty offense or youthful offender exception; and willful misrepresentation of material facts to gain entry into the U.S.

When you are inadmissible, but are otherwise visa eligible, you may file a 212(d)(3) nonimmigrant waiver to be excused from almost all inadmissibility grounds. A separate I-212 waiver (Permission to Reapply for Admission into the United States After Deportation or Removal) is needed if you are barred due to a prior removal order or illegal (or attempted illegal) reentry into the U.S.

B-2 IS DIFFERENT FROM B-1

The B-1 is under the same B-visa classification as the B-2 visa (for tourism and temporary visits), but is less restrictive. You may participate in tourist activities on a B-1 visa or a combined B-1/B-2 visa, but may not engage in temporary business activities, such as attend business meetings or negotiate contracts, while on a B-2 visa only.

B-1 DOES NOT AUTHORIZE EMPLOYMENT IN THE U.S.

The B-1 visa allows you to engage in business activities other than perform skilled or unskilled labor.  A B-1 issuance does not permit you to obtain and engage in employment while in the U.S.

Exception: Personal/domestic employees of U.S. citizens living abroad, U.S. citizens on temporary assignment in the U.S., foreign nationals in nonimmigrant status, and lawful permanent residents may receive the B-1 visa to enter the U.S. and perform work as a personal/domestic employee in the employer’s household. Special circumstances must exist for them to actually get the B-1 visa for this purpose. In addition, they need to apply for and receive an employment authorization card after entering the U.S. on a B-1 visa.

WORK WITH AN IMMIGRATION ATTORNEY

Failure to overcome the presumption of immigrant intent and show strong ties abroad is one of the top reasons for a visa refusal or denial. Inadmissibility grounds can also prevent a visa grant or your entry into the U.S.

Consult an experienced immigration attorney to assess your visa eligibility, advise you on the forms and documents to submit, and assist you with the application process to get the B-1 or combined B-1/B-2 visa.

For more information, read our related articles,  B-1 Visitor Visa: Traveling to the U.S. for Work as a Personal/Domestic Employee and B-2 Visitor Visa: Traveling to the U.S. for Tourism or a Temporary Visit.

Keep in mind that entering the U.S. too frequently for extended visits on a B-1 or combined B-1/B-2 visitor visa may lead to problems at the U.S. port of entry. See Birth Tourism, Frequent/Extended Trips, Immigration Status Change: 3 Things That Often Prevent Entry to the U.S. (even though they are not strictly prohibited).

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Laura Hoffman

Applying for a Marriage-Based Green Card Following Entry Into the U.S. as a Visitor

Foreign nationals who enter the U.S. on a B-1/B-2 visitor visa or on the Visa Waiver Program (VWP) may file for their green card within the U.S., instead of apply for their immigrant visa aboard, based on a bona fide marriage to a U.S. citizen. Overstaying their non-immigrant status in the U.S., in and of itself, does not prevent immediate relatives from adjusting to permanent resident status. Immediate relatives include the U.S. citizen’s spouse, children under age 21, and parents (if the U.S. citizen is 21 or older).

The visitor visa and VWP program allow foreign nationals to enter the U.S. for tourism or business for a temporary period. Using the visitor visa or VWP to enter the U.S. with the specific intent of immigrating to the U.S. carries risks and consequences. Although preconceived intent to immigrate is fine, problems arise when there is misrepresentation about the purpose of the trip.

What are the risks and consequences of the visitor-to-green card holder option? 

1. Foreign national may be charged with fraud or willful misrepresentation to obtain immigration benefits

Immigration authorities expect fiancé(e)s of U.S. citizens to apply for a K-1 visa and spouses of U.S. citizens to apply for a K-3 nonimmigrant visa or immigrant visa at the U.S. Consulate abroad, rather than enter the U.S. as a visitor and then apply for a marriage-based green card.

The U.S. Department of State adopted a 30/60 day rule when a foreign national violates his nonimmigrant status. When a foreign national marries a U.S. citizen or applies for permanent residence within 30 days of entry,  the DOS presumes that he misrepresented his intent in seeking a visitor visa or entry. If the marriage or green card application occurred after 30 days but within 60 days of entry, the DOS does not presume there was misrepresentation. But if the facts provide a reasonable basis to believe the foreign national misrepresented his intent, the DOS allows him to present rebuttal evidence. If the marriage or green card application occurred after 60 days, the DOS does not consider such conduct to constitute fraud or willful misrepresentation to obtain immigration benefits.

USCIS is a separate agency from the DOS and the Board of Immigration Appeals has held that immediate relatives are exempt from the 30/60 day rule. In other words, immediate relatives of U.S. citizens who wish to apply for adjustment of status may do so at any time, even within 30 days of entry into the U.S.

Nevertheless, USCIS is often persuaded by and frequently follows the DOS policy. During the adjustment of status process, USCIS may find that the applicant misused the visitor visa or VWP by claiming to be a mere visitor at the U.S. port of entry, when in fact he intended to remain in the U.S. and file for a marriage-based green card.

USCIS might be especially suspicious if you get married or apply for a green card within 30 to 60 days of entering the U.S. They might overlook this conduct or you might be able to convince the USCIS officer that you decided to marry or apply for a green card only after you arrived in the U.S.

If USCIS is not convinced by  your explanation, it will deny your marriage-based green card application on the basis of immigration fraud or misrepresentation, unless you qualify for and receive an I-601 waiver of inadmissibility.  (To obtain an I-601 waiver, applicants must show a qualifying relative  – i.e. U.S. citizen or permanent resident spouse or parent – would suffer extreme hardships if  they are not granted the green card and allowed to stay in the U.S.)

At the U.S. port of entry, the U.S. Customs and Border Protection (CBP) officer may also question the visitor visa holder or VWP entrant about the purpose of his visit.  If you truthfully inform the customs officer that you are coming to the U.S. to get married or visit your U.S. citizen fiancé(e), he could find that you have no intent to leave the U.S. before your authorized stay expires.  The officer may then issue an expedited removal order or request that you withdraw your application for admission into the U.S. In some cases, your visitor visa may be cancelled or revoked and you may be barred from using the VWP.

It can be tempting to just tell the U.S. Consulate or customs officer that you are only coming to the U.S. for a temporary visit, when in fact you intend to engage in other conduct that reflects immigrant intent. While preconceived intent to immigrate to the U.S. does not bar immediate relatives from adjusting to permanent resident status, fraud or willful misrepresentation to obtain immigration benefits does.

2. Foreign national is subject to removal from the U.S.

Although overstaying the B-1/B-2 or VWP authorized period does not bar adjustment of status, it does make the foreign national removable from the U.S. The maximum period of stay in B-1/B-2 status is typically 6 months.  The maximum period of stay on the VWP is 90 days.

When the foreign national remains in the U.S. following expiration of the B-1/B-2 authorized period, he is subject to being placed in removal proceedings due to the overstay. Because VWP entrants waive their right to contest any action for removal, except when applying for asylum, they may be ordered removed without being referred to an Immigration Judge.

The filing of an I-485 application tolls unlawful presence, but does not provide any lawful status. If the adjustment application is denied and the person is not maintaining any nonimmigrant status, he is not only subject to removal, but also begins to accrue unlawful presence.

Departure from the U.S. after accruing more than 180 days to less than 1 year of unlawful presence in the U.S. triggers a 3-year bar from the U.S. The bar is 10 years if the unlawful presence lasted for 1 year or more. To obtain an immigrant visa prior to when the  3/10 year bar expires, the foreign national must first receive an I-601 waiver of inadmissibility. A foreign national who was ordered removed from the U.S. would also need to obtain advance permission to re-enter the U.S. by filing a Form I-212 application (unless the 5, 10 or 20-year bar, resulting from the removal order, has passed).

Visa fraud (misusing the visitor visa or VWP to gain entry into the U.S.) is also grounds for removal from the U.S. Instead of being granted a green card, the foreign national who entered on a visitor visa may end up in removal proceedings, and the VWP entrant may be issued an expedited removal order, if they are found to have committed visa fraud.

When does the visitor-to-green card holder option work best?

1. Foreign national met the U.S. citizen spouse or began committed relationship after he entered the U.S.

In many cases, foreign nationals meet their U.S. citizen spouses-to-be or enter into a committed relationship or get engaged only after they arrive in the U.S. on a visitor’s visa or on the VWP, either during the authorized stay or after the authorized stay expired.

A bona fide marriage between the U.S. citizen and foreign national allows the couple to file a one-step application with USCIS (i.e. US citizen files I-130 immigrant petition and foreign national files I-485 application for adjustment of status, concurrently.)  Upon entry, the foreign national might have a general desire to remain in the U.S., but no specific plans to immigrate because he had yet to meet or become engaged to the U.S. citizen spouse.

The longer the time period between the visitor visa or VWP entry and the filing of the green card application, the easier it is for the foreign national to prove he did not commit fraud or willful misrepresentation to gain entry into the U.S.

2. Foreign national is undecided about immigrating to the U.S. even though he is engaged to a U.S. citizen or shares a long-distance relationship with a U.S. citizen

Entering the U.S. on a visitor visa or on the VWP to spend time with a U.S. citizen fiancé(e), to maintain a long-distance relationship with the U.S. citizen, or to get married to the U.S. citizen, is appropriate  – as long as the intent is to return to your home country before the authorized stay ends.

Not all foreign nationals want to immigrate to the United States. Some are from developed countries or run successful businesses or hold lucrative professions in their home countries that they do not want to relinquish.

Fraud or willful misrepresentation occurs when you intend to remain in the U.S. permanently, but you tell the consular officer or customs officer that you are coming to the U.S. for a temporary visit. In general, silence or failure to volunteer negative information that is not specifically requested does not amount to fraud or willful misrepresentation.

Due to the 30/60 day rule, it is best to wait to file the marriage-based green card application at least 61 days after entry on a visitor visa or on the VWP.  If the application is made after 60 days, USCIS normally assumes the foreign national acted in good faith and was undecided about immigrating to the U.S.

[UPDATE: On August 1, 2017, the DOS replaced the 30/60 day rule with the 90-day rule, which establishes a presumption of willful misrepresentation “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry.” If such actions occur within 90 days of entry, a consular officer “may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.”]

Keep in mind that USCIS considers other evidence when determining your true intentions upon entry into the U.S. For example, to prove the bona fide nature of your marriage, you may submit letters, emails and other correspondences proving your premarital courtship. If any of these correspondences show you planned to marry and remain permanently in the U.S. following entry as a visitor, USCIS could find that you misused the visitor visa or VWP and thus deny your green card application.

Consult an Immigration Attorney to Help You Determine Your Best Immigration Option

Although filing for a marriage-based green card following entry to the U.S. as a visitor is quite common, there are risks and consequences involved in this process.

Applying for a K-1 fiancé(e) visa, K-3 nonimmigrant visa, or immigrant visa at the U.S. Consulate abroad  instead of entering the U.S. on a visitor visa – when the intent is to immigrate to the U.S. – is normally more appropriate.

If you are already in the U.S. and have concerns about proving your good faith non-immigrant intent upon entry into the U.S., you could leave the U.S. before your authorized stay expires and apply for the appropriate visa abroad.  But you will be subject to the DOS’ 30/60 day rule when you apply for the visa. And if you leave the U.S. after your authorized stay expires, and you accumulated at least 180 days of unlawful presence prior to your departure, you will trigger the 3/10 year bar. In that event, you will need to obtain an I-601 waiver of inadmissibility to obtain the immigrant visa before the 3/10 year bar expires.

Consult an experienced immigration attorney to help you determine your best visa option and immigration route based on marriage to a U.S. citizen.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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 Photo by: Theophilos Papadopoulos