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.

:confused: Are you saying that weekly long-haul trips are an automatic red flag for US citizens?

Generally they are not -- at least not unless an immigration agent personally finds the multiple entries suspicious. Most of the non-terrorism/no-arrest-pending automated, data-based red-flagging of US citizens relates to customs concerns or concerns about passport fraud/misuse. And the passport fraud/misuse automatic red flags are not triggered merely by number of weekly (including weekly weekend) long-haul trips; that gets triggered only in conjunction with other datapoints.

A lot of trips with the same passport number with same general O/D (i.e., the additional datapoints) will increase the odds of automated redflagging when the pattern is deemed to indicate the heightened probability of passport fraud/misuse (i.e., passport getting person ABC into US, then passport is sent back overseas and person XYZ uses it to get into the US, and so on).

Interesting. I dated a girl from Vancouver from 1998-2004. From 1998-2000, she lived in Vancouver; we flew back and forth every 4-5 weeks. NEVER had a problem with US or Canada Immigration. She eventually applied to NYU for a Master's degree (and received a F-1 Student Visa) and came to live in NY/NJ with me permanently in 2001. She finished school in 2003 and was able to snag an H-1B visa as a teacher. We broke up in 2004. Her visa would have allowed her to stay in the US until 2009 on her visa; if she stayed in her job. Recently, I heard she is getting married (which is legal to pursue a marriage visa if you are on a H-1B; not if you are an F-1) and thus quitting her job....

- HF

Never had an issue with claiming you were visiting a girlfriend/boyfriend. Immigration cannot DENY you entry for this reason. As long as you prove you have transportation to LEAVE the country, they should have no issue. I am sure there ARE plenty of mixed-nationality couples who go to Vegas and get married....is it up to immigration to stop love or relationships? If it is a sham marriage then INS would vet that out later...

The only thing that an officer mentioned to me about the "girlfriend" is if I was bringing any "gifts" so they could charge me duty on them....Anyway, I also had CanPass but I hardly used it because the damn kiosk was either out of order or the regular line was really short.

- HF

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 :p

The key difference here is that while denial of a VWP simply constitutes a disbarment from using the VWP but is non-prejudicial in itself as far as 212(a) inadmissability is concerned, it does not preclude a subsequent succesful application for B1/B2 visa and consequent admission in that status at POE.

In contrast, an expedited removal upon denial of B1/B2 status at POE carries with it a mandatory 5-year disbarment from the United States and furthermore from application for any NIV/IV in that period without the specific prior application for a 212(a) waiver.

As regards the I-94W waiver of administrative process, the DS-156 has similar provisions. The only grounds to appeal the denial of a NIV is on the grounds of procedural irregularity - but since a vast majority of NIV denials are on the basis of 214(b) - an entirely subjective criterion - you are de-facto signing the same rights away on the DS-156.

Using your described process, the B1/B2 application process would seek 214(b) compliance but the POE process would be the final arbiter of entry. However, since POE cannot make a 214(b) determination in that circumstance their only resort is a 212(a) determination which carries a higher summary penalty.

A determination of 212(a) ineligibilty at POE is not appealable either (and good luck trying to track down a copy of the I-275 or the A file following an ER) so in that case, the obvious reccomendation would be to go with the lower risk strategy unless you can find a no-risk strategy (which the IV petition would provide).

Anyway, this is immigration geek talk so I will stop arguing and boring the regular readers. Either way, there is a grey area in the law and it should be addressed before more people slip through the cracks.

Not bored. Very interesting stuff. Thanks for sharing! ^

And we haven't even started on MRP and Bio Metric passport requirements yet lol.

Seriously however, the poster prior to you is correct in that it is probably going way beyond what the OP envisaged :D

being the OP I will say that I found all the responses very interesting

well, maybe I did get a bit lost when it got onto 214(b) and DS-156 :confused:

I'm back in BOS 2 weeks today so if I'll update this thread if I encounter any problems

they can deny you entry for almost anything they want. They are the ultimate authority on who can or can't enter the country, unless you have an entry waiver, you are not guaranteed entry into the US. Its the same in most any country in the world.
should is always a dangerous term to use.

The kiosks have worked 95% of the time I've used them. Most of the time, lines are short, but when I land and acouple of 747s landed with me, I'm glad when i see that full customs hall and I just walk on by.