This is perhaps one of the most common questions that our office runs across in the context of a family petition. Unfortunately, like almost everything in immigration, the answer is not black and white. There are some things that can and cannot be done, and it all depends on your individual circumstances.
Options for US Citizens
If you are a US Citizen and have already filed an I-130 for your husband or wife, you should expect an average consular case to take approximately one year or more. If your spouse is from a Visa Waiver Country and already applied for ESTA authorization, it may be possible for the spouse to visit you as a normal visitor for up to ninety days. Alternatively, if your spouse does not have ESTA, your spouse may try to apply for a visitor’s visa from the US consulate. The parties should be aware, however, that familial relationships and previous applications have to be disclosed. Practically speaking, most officers are inclined to refuse a visitor’s visa if the US spouse has already filed for the foreign national out of concerns that the prospective immigrant does not have genuine non-immigrant intent. In other words, the officer may suspect that the foreign national spouse is just looking to enter the United States with no intention of returning. However, if the foreign national can persuade the officer that the purpose of the visit is truly temporary and can establish that he or she will return, it is possible to be granted a visa.
In both cases, the caveat is that if the foreign national is refused entry at the border—which is still possible, whether one has ESTA or a valid visitor’s visa—the refusal can have a negative impact on the immigrant visa case, depending on the circumstances. Given this, couples who are of a more conservative bent may want to consider having the US Citizen visit the spouse abroad rather than risk any complications that may be incurred by the foreign national trying to visit the US.
Another theoretical option that may be available for spouses of US citizens is the K-3 visa. This is a special type of visa that is not heavily utilized but if one is lucky enough to get one, allows the spouse of US citizen to enter the US while the I-130 petition is pending with USCIS. In order to file for a K-3 visa, the I-130 must first be filed and received by the government. However, if the I-130 petition is approved before the I-129f petition (for the K-3) is approved, the K-3 petition is administratively canceled and the couple must continue along the regular immigrant visa process.
Options for Spouses of Lawful Permanent Residents
Unfortunately, there are less options for spouses of green card holders. For one thing, husbands or wives of lawful permanent residents are not eligible to apply for K-3 visas. Therefore, the spouse will need to apply for a B-2 visitor visa unless he or she is from a Visa Waiver Country (in which case, the spouse may apply for ESTA authorization).
While physical separation for spouses can be extremely challenging on the relationship, couples must carefully consider the benefits against the risks of attempting to visit the US while an I-130 is pending. Any refusals, denials, misrepresentations during the visa or ESTA application process, or any complications at the port of entry, can have significant and deleterious ramifications for green card case.
If you have already filed for your spouse abroad, and would like to explore what your spouse’s options are to visit you here, please call our office to discuss your matter. We may be able to help your spouse prepare a strong non-immigrant visa application or possible K-3 visa petition. The above is general information only. It is not specific legal advice nor intended to create an attorney client relationship. If you need advice, please consult with an attorney.