Originally Posted by B747-437B
Therein lies the problem. The applicant for the NIV has already demonstrated a weakening of ties to the "home country" by purchasing a residence in the United States. When that is coupled with the eligibility for an IV due to marriage to a citizen, it becomes very hard to overcome the default 214(b) supposition. Furthermore, the issue of a B1/B2 leaves the applicant open for a summary 212(a) ruling at POE at any time (without right of appeal) under the "expedited removal" clause, which carries with it a mandatory 5 year ban. It is not worth taking the risk IMHO.
Many tens of thousands of Brits and indeed other Europeans own second or vacation homes throughout the US in particular florida. None of them seem to be deemed to have a weakeniing of ties to the home country. A weakening is just that not a demolition!
A residence is only one test of many. Provided there are significant other strong ties it is not a major issue or an obstacle that can not be overcome.
The Visa Waiver Program (VWP) waives (excuses) the requirement to obtain a visa for residents of certain (mostly Western European) countries to travel to the U.S. The VWP does not guarantee admission into the U.S. however.
Coming into the U.S. as a non-immigrant (temporary) visitor is
always a two step process. The VWP waives the requirement for the first step – obtaining a visa which allows you to board a plane to the U.S. – but not the second step, actually being permitted into the U.S.
Non-immigrant visitors to the U.S. must prove that they do not intend to remain in the U.S. permanently every time they seek to enter the U.S. Even residents of VWP countries will eventually be denied admission into the U.S. if an Immigration official determines that you are actually using the VWP to live in the U.S. or to cirumnavigate the system.
So the same problem exists either on a B2 or VWP entrant. The additonal problems the Posters husband faces entering under the VWP is that he is (1) restricted to a maximum stay of 90 days as opposed to 1 year on B2 admission, (2) a VWP applicant found to be inadmissible by the inspecting officer is refused entry into the United States without further administrative hearing. When you sign the green I94(w) you agree to accept these conditions.
Incidently even under the VWP the entrant must still convince the examining CBP officer that they are clearly and beyond a doubt entitled to be admitted and that they are not inadmissible under section 212 the Immigration and Nationality Act .
Immigration law is never clear and even immigration attorneys (which I am not btw) baulk at some of these grey areas.
However I stand by my original postion that there is no significant advantage of travelling under the VWP over a B2 visa and in fact the reverse may often be true.
Of course the next part of this thread is what happens when the alien wants to obtain a driving licence. The fun really starts then
