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Can A Family Member Be In The United States At The Time Of Filing For Immigration?


USCIS has designed a special category for a family member to come to the United States while their petition is pending. Let’s give an example of a US citizen filing a petition for his or her spouse who is abroad. As soon as the US citizen receives the receipt number for that petition, they can start the process for a K visa to be obtained at the US embassy abroad. The US government designed special visas to enable the family member who is currently abroad to come to the US, while the US citizen’s family member’s petition is pending in the US. However, the wait time for those K3 visa cases are almost as long as the actual processing time of the entire green card case. Some immigrants come to the United States as tourists just for the purpose to visit their family member (which should be the intended purpose) while their family member’s petition is pending.

However, their status as a tourist or a visitor in the United States is supposed to be non-immigrant. So when somebody comes to the United States just to visit their spouse or their fiancé, they attest to the immigration officer at the airport that they don’t intend to immigrate to the United States that their visit will be short, and they intend to go back. In reality. They do have an immigrant intent, because they have a family member who petitioned for their green card or fiancé visa. Their entry is entirely at the discretion of the immigration officers at the airports (or land border crossings) to allow somebody to enter the United States as a tourist, for example, while they are waiting for their family member’s petition to the process. There is always a risk of being turned around at the border, if the immigration officer at the border doesn’t believe that they will not go back to their home country to finish processing their case, as they are not supposed to have an immigrant intent when they come to the United States as a tourist.

An individual can come to the US if they obtained the right type of visa while their family member’s petition is pending— K-3 and K-4 visas are designed for family members to come to the US while their family member’s petition is pending. Otherwise, they can try to come to the United States as tourists, if they can prove that their stay in the United States would be temporary, and that they would go back.

Is There A Way To Check The Status Of My Visa Petition?

There is a way to check on the status of a visa petition. Every time a US citizen or a green card holder family member files a petition, they get a receipt number. They can enter that receipt number on the USCIS website by going to www.uscis.com, then checking on the case status. They enter their case number, and they can check their case status. The information that they get on the USCIS website, as far as their case status goes, is very limited.

Sometimes, we see that individuals enter their case status and they get a notification that no information was found in the system, and people get scared that their case got lost. This is not a reason for concern, because we’re all accessing a public database of USCIS. Websites have glitches, and public databases have glitches. We’re not accessing the secret, private database of the US government. People should not be concerned if they enter their case number on the USCIS case status website and they don’t get any information about their case. In general though individuals should be able to check their case on the public database of USCIS.

Can Someone Appeal A Denial Of Their Family Based Immigration Petition?

A denial of a family-based immigration petition can be appealed in a couple different ways. Normally, a denial of an I-130 petition—the petition that US citizens or green card holders file for their family members—is filed with the Board of Immigration Appeals. USCIS cases in general can be appealed to the Administrative Appeals office, which is the higher-up agency for appeals, or they can be filed with motions to reopen or reconsider with USCIS. Some cases can only be appealed to the Board of Immigration Appeals, some cases can only be appealed to the Administrative Appeals Office and some cases can only be filed with motions to reopen or reconsider to USCIS which is the same agency that made the initial decision on the case. You should consult with an immigration attorney any time you wish to appeal a USCIS decision.

For more information on Being In The US When Filing For Immigration, a free case evaluation is your next best step. Get the information and legal answers you are seeking by calling (646) 453-4170 today.

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