There is much excitement over Category F2A (the preference category for spouses and children under 21 of lawful permanent residents) becoming current next month-and understandably so. For quite some time now, this preference category has been approximately two years behind. However, it is important to recognize that current does not mean immediate, especially in the consular filing context, which on average can take up to one year. A concomitant question that naturally arises is whether the spouse of a pending I-130 petition for alien relative can apply for a visitor’s visa. The simple answer is yes. An individual is not necessarily precluded from applying for a non-immigrant visa just because a petition for alien relative petition is pending. Not surprisingly, though, the answer is much more complicated than that. Perhaps the better question is, “Will my spouse get the visitor’s visa to come see me while the case is pending?” And, unfortunately, there is no simple answer to that, although in the vast majority of cases, the answer is probably not. The reason why is that consular officials are likely to question whether your spouse truly has non-immigrant intent to come visit you, given that you have already filed a petition for his/her immigrant visa. The consular officer may think that your spouse is trying to circumvent the long processing times associated with the process and perhaps is planning on filing for adjustment of status once he/she manages to get into the US via the visitor’s visa. On the other hand, this is not to say that it is impossible for your spouse to come visit you. If your spouse exhibits strong evidence that he/she will return, along with substantial ties to his/her native country, a visitor’s visa may still be granted. Generally speaking, though, even applying for a visa under these circumstances is a risky proposition. Not only may the application be denied, but worse, if there is some sort of misunderstanding, there is always the specter of an allegation of fraud or misrepresentation, which may destroy a case permanently. The best thing to do before your spouse goes ahead and applies for that visa is to consult with counsel to evaluate the evidence that will be provided to demonstrate non-immigrant intent and assess the feasibility of whether to apply or not.
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