Can I start the permanent residence process for my wife while she is in the US on a tourist visa? 11 Answers as of September 26, 2011

Your facts are time-sensitive. As a matter of law, you can file an I-130 petition for her. Under the circumstances, you should also file I-485 simultaneously with I-130. In addition, after I-130/I-485 are filed within 45 days after your entry into the U.S., but within 45 days before her B1/B2 visa expires, she can file for extension of her visa for another 6 months.

She cannot enter the U.S. on a tourist visa with the intent of processing for permanent residence. The tourist visa specifically requires that she have non-immigrant intent so entering with the purposes of processing for permanent residence would be a violation of the visa. There are certainly other ways to get her here, including a fiancé visa or immigrant visa and we can discuss those options with you to determine the best avenue for you.

If she is allowed to enter US on a tourist visa, you may file both your petition and her application to become a permanent resident. If she is not allowed to enter US which might happen at the airport, she should withdraw her application for admission to avoid deportation.

Technically, you can petition for your wife to receive an immigrant visa while she is in the U.S. on a tourist visa. Assuming you are a U.S. citizen, she can remain in the U.S. while the application is pending despite the expiration of her authorized stay and still adjust. However, USCIS could deny her adjustment on a conclusion that she intended to immigrate when entering with a tourist visa, which invalidates the visa used for entry. As such, it makes it difficult for her to remain in the U.S. while the case is pending. To avoid this issue, your wife would need to depart and process her immigrant visa through the U.S. Embassy/Consulate in Guatemala,. It is imperative that she leave the U.S. in compliance with the terms of her visa to avoid unlawful presence issues. Once the I-130 is filed, it is highly unlikely she will be allowed to enter the U.S. on her tourist visa as the U.S. customs will consider her an immigrant rather than a non-immigrant, which is required for a tourist visa. It will probably take about a year for her to receive the immigrant visa and she will not likely be allowed in the U.S. once she departs, but you can travel to see her in Guatemala or could meet in other destinations where she can enter.

Many thanks for your service. Your wife can definitely file her I130 here in the States while on her tourist visa. If done well, it should not take more than 6 months; and if it does, I wouldnt worry about it at all. In order for her to be able to travel out of the US and back, you would have to file the I131 along with your application packet at no extra charge and it will be approved at the same time as her work permit, on the same card. If this gets too involved for you in any way please call my office and we will help. Good luck!

In order to enter on a visitor's visa your wife must not intend to stay in the United States. There is a strong chance your spouse will not be allowed to enter the US. If she is allowed to enter you may be able to petition for her. I would recommend you speak with and retain an immigration attorney. For a free consultation you may contact my office.

There will be no problem to file I-130 while she is in the US. It is also no problem after she enters the US for at least 60 days to file I-485, adjustment of status. She does not have to leave the US after she files the I-485 even after her B visa expires. She can apply for travel document to leave the US and return to the US after the trip. She can also apply for employment authorization.

I question your statement that it is not practical to start the US immigration process from Germany. It is not only practical, it is the best course of action. You can visit the US Embassy together and get the process started there, with your certified copy of your marriage certificate in hand. The in-country consular officers have the authority to approve her immigration visa so that she can come home with you. It is not advisable for the wife of a US citizen to enter the USA on a tourist visa; in fact, this is a type of immigration fraud. She is not a tourist, she is an intending immigrant. Similarly, if she leaves the USA while the I-130/I-485 are being processed, that is considered a legal abandonment of her petitions. Once you are back in the USA, your I-130 for her will be processed by USCIS. That's a big difference from the service you get from our embassies overseas.

If you want a simple answer then yes it is possible to apply when you both are back in the states. I would prefer discussing it with you in detail before you leave for the US.

First off, thank you for serving our country and ensuring our safety back home. Yes you may initiate the filing of both the I-130 Petition for Alien Relative and I-485 Application for Adjustment of Status, when she enters the US on a Visitor's Visa. I would however caution you not to file said Petition and Application within 60 days from the time she arrives. This is to prevent the presumption that she entered as a tourist with a fraudulent intent to immigrate. Commission of fraud may cause the denial of her Adjustment of Status. I won't worry much about the possibility of her overstaying her Visitor's Visa while the Petition and Application are pending, which would still be granted nonetheless because she is being petitioned by you, US Citizen Spouse. All the best to you and have a safe return.