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I have a question about an I-130 application for a Spouse of…

Hi, I have a question...
Hi, I have a question about an I-130 application for a Spouse of US Citizen. She is wondering two quick things:1) if she enters the US on a tourist VISA and applies for an I-130 through her US Citizen Spouse, is she allowed to stay in the US during the entire time her application is pending, even if it say one year wait or longer and she becomes out of status?2) And secondly, if this is true then will she only need to return to her home country to go to the interview at the Embassy?Thank you.
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Answered in 1 minute by:
8/17/2017
Nisha Jones
Category: Immigration Law
Satisfied Customers: 3,110
Experience: Managing Attorney at Nisha Jones Law, LLC
Verified

Good morning, I am an Immigration Law attorney and former Prosecutor for the State Attorney's Office. I'll be answering your questions today, please understand this is for informational purposes only, and we do not currently have an attorney-client relationship. I've reviewing your question, please allow me just a few minutes to prepare some information for you, thank you!

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Thanks for your patience while I typed up my response!

If she enters on a tourist visa, then no she is not supposed to remain in the US while the petition is pending.

There is however a separate K3 visa that she can petition for which is specifically for spouses of US citizens, so that she can join her husband and remain here in the US while her application is pending.

If she does remain in the US on the tourist visa, the problem she can run into is accruing unlawful presence for overstaying her visa. Even marriage to a US citizen cannot fix some of the issues run into by overstaying a visa.

To be more specific-- overstaying a visa by 6 months will lead to a 5 year re-entry ban to the US and overstaying by 1 year will lead to a 10 year re-entry ban.

This arises as a problem when she has to leave the US and return home for her interview at the embassy. Upon attempting to re-enter the US, a ban could be in effect depending on the length of time she overstayed.

For this reason, I recommend that your friend petition for the K3 visa. That way she can be here in the US with her husband, and not need to worry about any re-entry issues with USCIS and CBP.

I hope that helps! Please let me know if you have any other questions. Also, please take a moment to rate me using the stars at the top of the page, as it's the only way experts are compensated for our time on the site. I do not receive a salary here at JustAnswer, and am only compensated for my time after receiving a rating of 3 stars or more. The question won't close after rating, so you can still ask follow-up questions after. Thanks, ***** ***** it!

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Customer reply replied 10 months ago
Actually I found out she is applying through her sister who is US Citizen. How does that change the answer?

That would change things greatly actually.

The current processing wait times for siblings are VERY lengthy, ranging anywhere between 10 - 12 years.

There is not an option like the K3 for waiting in the US while that petition is pending, she must wait for approval of the petition in her home country.

Of course, she can still apply for a B2 tourist visa during that time if she wishes to visit the US on a temporary stay.

Gentle reminder: please kindly take a moment to leave a positive rating for me, thanks!

Nisha Jones
Category: Immigration Law
Satisfied Customers: 3,110
Experience: Managing Attorney at Nisha Jones Law, LLC
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