Father coming on tourist visa while his I-130 petition is pending - PROBLEM???

[ivelina]

I was told today by the CIS customer service agent that my father’s coming next week may cost him his approval during the interview for his GC.


The I-130 petition for him is currently pending and according to the Vermont Center's processing times, it looks like we will get the Notice of Approval in a couple of months from now.

So based on that, we decided that he can come now on a 6 months tourist visa and then follow the change of status procedure as oposed to the consular procedure.

When he went to the US embassy in his home town he told them all of this and they gave him a tourist visa and did not say anything else.

Today, i called CIS to change the address on his petition from his home town abroad to my US address so that when the NOA comes, they don't go notifying him abroad. That is when the customer service lady told me that apparently he is not allowed to travel to the state while his petition is pending.

She said that when we try to change his status and we go to the interview, the agent may deny him his GC based on the fact that he "transgressed the rules"


Has anyone heard of this before? How come it was never written anywhere on their site or in their instruction booklets? And how come the US embassy did not have a problem with him coming before a visa number was available?

Please let me hear your opinions b/c I’m worried that we might have screwed things up. He is coming this Tuesday

 

[GotPR?]

I do not think just traveling to the US during pending immigration petition jeopadizes immigration petition itself, but it is possible he is rejected at POE due to immigration intent.

Transgression part of their response is because B1 should be obtained bona fide non-immigrant intent, but your father obtained with clear immigration intent which is not allowed.

 

[aniretake]

Yes, your father probably will not succeed in getting a B-1 visa because he has shown immigration intent by filing I-130 petition.

 

[Pinturicchio]

Yes, your father probably will not succeed in getting a B-1 visa because he has shown immigration intent by filing I-130 petition.

Read the post again. His father already got the B Visa.

 

[aniretake]

Than better for him! No need to be so irritated!

 

[harish99]

Did he the truth about I-130 petition in B1 application form?

 

[ivelina]

Did he the truth about I-130 petition in B1 application form?

Yes, I told him to be upfront about the I-130 petition pending when he goes to the embassy. So he told them that his daughter has applied for him and his wife and that we think that we'll get NOA in a few months.

He told them all of that and apparently they were barely interested. They took his papers and passport and said, no problem, come back tomorrow.


I don't see how coming on a tourist visa is immigrant intent WHEN WE ARE intentionally applying for immigration.. I just fail to grasp how we are doing anything wrong.

But still, if anyone here knows for sure that this is or is not illegal and will or will not get up in trouble later on, I would appreciate hearing from them.

Thanks guys,
eve

 

[ivelina]

I do not think just traveling to the US during pending immigration petition jeopadizes immigration petition itself, but it is possible he is rejected at POE due to immigration intent.

Transgression part of their response is because B1 should be obtained bona fide non-immigrant intent, but your father obtained with clear immigration intent which is not allowed.

I see what you are saying, but wouldn't they have said that when he went to ask for it? He clearly told them, we are planning on me going there and when the AOS arrives in a few months if i'm still withing my toursit visa period, then I'll just change status there.

 

[Pinturicchio]

I don't see how coming on a tourist visa is immigrant intent WHEN WE ARE intentionally applying for immigration.. I just fail to grasp how we are doing anything wrong.

Ok I'll help you grasp that

A tourist visa, is given to individuals under the assumption that they will be returning to their country. The intent of the individual should be to spend some time in the US, and then go home.

Your father has the intention of entering the US to stay. And you say he's going to be trying to do that after entering on a non-immigrant visa. This is where your father is kind of lying to the government. Upon entering to the US, the officer is going to ask him about his purpose of visit. If your father actually tells him the truth, then there's a big chance the officer is going to deny him entry.

Some people come to the US on tourist visas, and then adjust status. But the difference here is that the change of heart usually takes place after they enter the US, not before (like meeting someone, and deciding to get married).

 

[GotPR?]

I see what you are saying, but wouldn't they have said that when he went to ask for it? He clearly told them, we are planning on me going there and when the AOS arrives in a few months if i'm still withing my toursit visa period, then I'll just change status there.

"They" you are talking about is consulate, but AOS decision is on USCIS.
Consulate(DOS) and USCIS(DHS) is totally different organization and a decision made by one of these organizations may not be always honored by the others.
In fact, there are a lot of incidents that people who got approved visa extension by USCIS gets rejected to get visa stamp at consulate.
It's the same thing. Even though consulate gave him visa stamp, CBP has power to reject his entry to the US due to immigration intent, and even though he entered the US, USCIS has power to deny his AOS petition.

There is well-known fact that USCIS has some unwritten rule(or might be written in their internal manual) that change of status or adjustment of status petition filed immidiately after entry with non-immigrant visa can be denied due to the questionnable initial intent of entry.

I don't see how coming on a tourist visa is immigrant intent WHEN WE ARE intentionally applying for immigration.. I just fail to grasp how we are doing anything wrong

Each visa is made for given purpose.
Frankly, this is clearly abusive use of B1 visa, as it should not be used for that purpose.

 

[payala]

So he's planning to stay here illegaly for few months? He can only stay here for how ever long says on his I-94. Every time my family comes to visit they usually get like 3 months in his form but of course this varies. You can't rely completly on the processing dates, that doesn't mean that your parents will def be processed then.

 

[ivelina]

Ok guys. thank you all for explaining. I wish we had known that this would be taken badly by the CIS before we planned on it. But I guess he'll just have go back when his approval comes and process his immigrant from home. Of course he was never planning on trangressing the B1 visa should the NOA not come within that time, but now we'll scratch that and just have him go back either way.

cheers,
eve