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April 27, 2009: Visa Waiver and Pending I-130 Petition

Visa Waiver and Pending I-130 Petition

I am a United States citizen and plan on submitting an I-130 for my alien spouse who is a Japanese national. As a member of the Visa Waiver Program, Japanese citizens such as my wife need not visit the American Consulate to obtain a visitor’s visa. If she arrives at the port of entry in the U.S. with an I-130 pending could she get turned back? If so, are there ways to mitigate the likelihood of getting turned back? The intent is strictly for a temporary visit, since she must return for the Immigrant visa process.
— Anonymous

You are on the right track. As an applicant for admission to the United States as a visitor through the Visa Waiver Program, she will have to prove that she intends to remain in the United States only for a temporary period. Of course there is no guarantee that she will be admitted as a visitor.

However, she may be able to increase her chances of being admitted by bringing proof of permanency in Japan and the intent to temporarily stay by having a round trip ticket. Proof may be in the form of documentation regarding permanent employment/ownership of a business, family ties, and/or ownership of a home in Japan, among other forms of evidence.

She may be asked by the Customs and Border Patrol (CBP) at the airport if she has a spouse or adult child who permanently reside in the United States and may inquire into visa petitions filed on her behalf. If this happens, she should of course tell the truth because even if a visa petition has been filed, she may still be admitted to the United States if the CBP officer is satisfied with her proof of intent to only temporarily stay.

There is no way to predict with any amount of certainty whether the CBP officer will be satisfied with your wife¿s answers and documentation. If she is turned away, she will need to obtain a visa from abroad to enter at a later date.

It may be in your best interest to consult with an immigration attorney to discuss the potential issues that your wife may face when she attempts to enter the United States on the Visa Waiver Program.

Michael Shane and Evan Shane, Immigration Attorneys

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