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Well OT - Entry to the USA during Visa Application

Well OT - Entry to the USA during Visa Application

Old May 21, 2008, 1:20 am
  #1  
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Well OT - Entry to the USA during Visa Application

There seemed to be a lot of knowledge on this board about entry procedures to the USA in the 'Leeds flasher' thread so perhaps you'll indulge me too...

My friend (British) is engaged to an American and planning to marry in California in mid-August. They are currently living in the UK but plan to move permanently to the States at the time of, or soon after, the wedding. To that end, said friend applied for a visa (I'm not sure exactly what type) in March. He has just been informed that such is the backlog at USCIS they won't even be able to look at his application until October at the earliest. They further informed him that his application for a visa has been logged and linked with his passport number and that this information will be flagged at any immigration point. His chances of entry without a visa, they said, are "slim."

One option they are considering is just to turn up a week before the wedding as planned and hope he gets let in. The problem is that by this point guests will also be committed, and it would be a disaster if he's denied entry. He's also rather worried about being denied entry and then never being allowed in the country again.

I thought a quick return to New York may be an option to test the waters without a whole wedding party waiting for him, but the problem remains that there is a chance, however slim, it may jeopardise his chances of ever getting into America again.

Any suggestions / experiences very gratefully received.
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Old May 21, 2008, 2:47 am
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From my dealings with these kinds of processes (twice) 90% of US immigration law is based upon your intent at the time of entry.

I've entered the US under the VWP with a single entry K-1 visa in my passport. The immigration officer wanted to know why I was doing that but a quick explanation was sufficient. As I was entering opting to not use the K-1 that was seen as being fine.

Maybe I'm supposed to read between the lines but haven't...can your friend enter the US under the VWP? If so based on my experiences I can't see why he couldn't again even with another visa in the works.

This post does not constitute legal advice...blah, blah, blah, don't sue me if your friend reads this and his life is ruined as a result of my writings
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Old May 21, 2008, 3:49 am
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Perhaps your friend's fiancee could contact her Congressman, explain the situation, and ask if he is able to help push things along. The Embassy staff may also be able to offer advice about entering the US with a pending fiance visa application.
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Old May 21, 2008, 4:01 am
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Very helpful, thank you bel and Fraser ^

No, there is no need to read between the lines. I have already suggested that surely he could just enter under the VWP - he has in the past a number of times - (with plenty of evidence such as return air tickets, maybe proof of employment in the UK, proof that they're getting married) but the worry is the comment from USCIS that arrival while a visa application is pending gives a "slim" chance of entry. I guess a significant difference between the situations of Fraser and my friend is that Fraser had already been granted a visa but chose not to use it, while my friend has not been.

My personal opinion is that he would be fine, but there is quite a lot riding on it...!

I'll suggest contacting the British Embassy and the Congressman but USCIS said that they're only now looking at applications submitted in Oct 07 so I'm not sure how successful that route would be. However, I wonder if applying for a single-entry visa may be an option?
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Old May 21, 2008, 4:11 am
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I think they could well have problems entering the US whilst an application for residency is underway. The Officer at the entry point would probably feel they are not going to leave. Furthermore there is no guarantee they'd be successful in the residency application.

I think you need to liaise with the US Embassy and also an Immigration lawyer who is a specialist on US immigration issues. I would certainly not risk just pitching up on the day. Sorry.

Although I've never been a green card holder, I have held work visas (L-1) for the US and rules are tight and not to be messed with.

Last edited by sunrisegirl; May 21, 2008 at 4:20 am
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Old May 21, 2008, 4:39 am
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Originally Posted by sunrisegirl
I think you need to liaise with the US Embassy and also an Immigration lawyer who is a specialist on US immigration issues. I would certainly not risk just pitching up on the day. Sorry.

Although I've never been a green card holder, I have held work visas (L-1) for the US and rules are tight and not to be messed with.
And the latest news from my friend is that he has a meeting with just such a lawyer tomorrow. He's kicking himself that he heeded USCIS from the beginning rather than employing a lawyer in the first place.

Thank you all for your advice, I really appreciate it.
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Old May 21, 2008, 4:43 am
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Yeah, I'm pretty certain that you can't enter with "dual intent" unless you are entering with a work visa. Visa Waiver and the current application would count as dual intent, I believe.
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Old May 21, 2008, 4:54 am
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Its all about the intent.

As he has a pending visa application (K/finance visa by any chance?) that shows an intent to stay in the US in the future...

As such , as immigration official may deny him entry.
If you have married an american in the states,as long as you entered the country legally with no intent to remain at the time of entry you can adjust status from within the country and basically never leave , so they may deny entry because of that- they may see him as trying to bypass the visa process he has started and him attempting to fast track it by just staying there.

I have to wonder why on earth he applied for a visa before he was married....when its a hell of a lot easier and quicker once you are married, both from within the US and outside of it, as you are in a different (priority) visa category.

He could always cancel the application?

He's also rather worried about being denied entry and then never being allowed in the country again.
Dont worry about that...once you are married to a yank, it doesnt really matter. You could have been living there illegally for 50 years, or denied entry at some point, but the slate is wiped clean after marriage and you are entitled to apply for residency as you are married to a citzen.

Would suggest going to see an immigration attorney...
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Old May 21, 2008, 9:45 am
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Originally Posted by linenbasket
Dont worry about that...once you are married to a yank, it doesnt really matter. You could have been living there illegally for 50 years, or denied entry at some point, but the slate is wiped clean after marriage and you are entitled to apply for residency as you are married to a citzen.

Would suggest going to see an immigration attorney...
Mhh then you have had a close look atthe immigration jails in the US - filled with people who even received a green card in between etc...

They ahve no problem kicking them out.
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Old May 21, 2008, 10:09 am
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As others have mentioned, this is all about intent. I'd suggest that he's pretty screwed if they do happen to notice his visa application when entering under the visa waiver program. They'll absolutely refuse entry and make him sit in a holding cell until they can find a flight back. I know folks who've had this happen and it's not fun.

As for linenbasket's comment about "the slate being wiped clean", I would be very careful with that. The process for applying for a green card for the spouse of a citizen is not a 100% slamdunk. One of the things that you have to fess up to is whether you've ever been denied entry. Will it stop him eventually getting a green card? Probably not. But it will make the whole application process a lot more unpleasant.

Right now, the green card waiting lists for spousal petitions are around 18 months in Northern California.

They definitely need to get themselves an immigration lawyer.
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Old May 21, 2008, 10:25 am
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Originally Posted by smackie

As for linenbasket's comment about "the slate being wiped clean", I would be very careful with that. The process for applying for a green card for the spouse of a citizen is not a 100% slamdunk.
I wasn't implying that it was....... simply that once married to a citizen things like previous overstays or an entry refusal are not as relevant any more...and it certainly isn't a future bar/absolutely no entry type scenario, which is one of the things the OP was concerned about.

Perhaps my choice of phrasing was slightly wrong (blame tiredness) but the principal is the same.
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Old May 21, 2008, 10:41 am
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Originally Posted by linenbasket
I have to wonder why on earth he applied for a visa before he was married....when its a hell of a lot easier and quicker once you are married, both from within the US and outside of it, as you are in a different (priority) visa category.
Originally Posted by smackie
Right now, the green card waiting lists for spousal petitions are around 18 months in Northern California.
If the waiting list is 18 months, how do you stay legally in the US during that time (once you are married to the US citizen)?

BTW: if you enter the US on the VWP, and then get married to a US citizen, wouldn't that in itself be a violation of the VWP (or at least the violation would occur once your spouse petitions for a green card)?
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Old May 21, 2008, 12:36 pm
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Originally Posted by frankvb
If the waiting list is 18 months, how do you stay legally in the US during that time (once you are married to the US citizen)?

BTW: if you enter the US on the VWP, and then get married to a US citizen, wouldn't that in itself be a violation of the VWP (or at least the violation would occur once your spouse petitions for a green card)?
In answer to your first question, legally you can't stay 18 months. You have a maximum stay of 3 months under the VWP. However, many leave to a nearby destination just before those 3 months are up and then return and get another 3 months. However, do this 2-3 times and it flags up to an Immigration Official and you'll be questioned.

If you get married, this is a bit more unclear. However, your spouse would have to petition for you and then the Department of Homeland Security would have lots and lots of questions to ask. They would likely turn up at your home to check you are really living as man and wife and ask all kinds of intimate questions (they do this in the UK too - I know from personal experience). The spouse would probably have to return to their home country before final visa is issued. Also I think you'd be issued a visa before getting the green card as that will take a number of years.
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Old May 21, 2008, 12:58 pm
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Originally Posted by sunrisegirl
Also I think you'd be issued a visa before getting the green card as that will take a number of years.
If I understand it correctly, you'll first get a 'provisional' (or temporary) green card, which will expiry after 2 years. On expiry you will have to re-apply in order to get the permanent one. However during the time you have applied (petitioned) for the initial green card, but have not been granted one yet, I would expect you do still have a legal right to be in the US due to being married to a US citizen.

Note however that no green card is permanent - the US has to right to revoke it in case you live outside of the US long enough (don't know the exact rules about it, or even if there are hard rules).

Anyway, I agree it will probably be fun to go through the process
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Old May 21, 2008, 1:17 pm
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If you are married to an American and apply for a visa to move to the US, you are issued a conditional residence permit if you've been married for less than two years. After two years you can apply to have the conditions removed. If you've been married more than two years, you are granted an unconditional residence permit. There are restrictions on the time permit holders may spend outside the US, though if you acquire US citizenship that becomes irrelevant.

There are different ways of going about it, but the easiest is if the American spouse has lived in the UK long enough to petition through the Embassy. This requires having a sponsor, or enough assets to fulfill the requirements of the affidavit of support, or an offer of employment in the US that will meet minimum salary requirements. The couple can stay together in the UK during the process. The alternative is to have the American spouse petition from the US, which means being separated for some time.

It's actually not as bad as it sounds, and no worse than the process to get here--just a bit more tedious.
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