Does Filing an I-130 Establish Immigrant Intent?

Erick Widman

When you have loved ones who live in the United States and are eligible to file for your permanent residency (green card), you might be wondering if the filing of a Petition for an Alien Relative (Form I-130) could create the difficult situation of preventing you from traveling to the U.S. to see your loved ones while the application is pending. Like many areas of immigration law, there is not a completely black and white answer, but there are steps that can be taken to help alleviate some of the stress of the situation. In general, as long as you are prepared to demonstrate that you do not have the intention to immigrate, or remain in the U.S. and will be returning to your home country, it is not unreasonable for you to visit your spouse, parent, child or sibling while your I-130 application is pending.

One of the main requirements for entering the U.S. on a visitor visa or visa waiver (“ESTA”) is that a person does not have “immigrant intent” or plan to remain in the United States beyond a temporary stay. This is one of the main things that Customs and Border Protection (“CBP”) officers are screening for at border checkpoints. Of course, if a family member or spouse has filed an I-130 on your behalf, this in and of itself could be viewed as evidence that you do have the intention of immigrating to the United States, at least at some point in time. Along with access to your criminal history, CBP officers are also able to search whether or not you have any pending applications filed with the United States Citizenship and Immigration Services in order to help determine immigrant intent. So does this mean that it is impossible to visit the U.S. once an I-130 has been filed on your behalf? Probably not. The simplest and most obvious way to show that you do not have immigrant intent at the time of your visit to the United States is to purchase a round-trip ticket. Even if you have open-ended plans and are not sure how long your visit will last, a one-way ticket is a sure way to arouse suspicion of immigrant intent.

If you have previously traveled to the U.S. on a tourist visa or ESTA, the most likely scenario is that you will be able to pass through CBP inspection without any additional questioning. Prior visits to the U.S. when you have not overstayed your visa are an important indication that you will again respect the allotted duration of stay and return to your home country. If you have never visited the U.S., it is possible that CBP may look at your entrance to the U.S. with a bit more scrutiny. Whether you have visited the U.S. many times or it is your first entry, it is important to be prepared to acknowledge that you have an I-130 pending, if you are asked. While you do not need to volunteer this information, the most important thing is to always be truthful in any interaction with immigration officers. If your sister has filed an I-130 on your behalf but you don’t expect it to be approved for at least the next 15 years, it is reasonable for you to explain that you wish to visit your family while you are waiting years for an immigrant visa to become available for you. It is preferable to acknowledge the pending I-130 application and explain that you do not currently or immediately have immigrant intent.

Secondly, it is crucial that you are prepared to articulate the duration and purpose of your trip. Vague or elusive answers can be suspicious. If you are visiting your husband for a month and you plan to visit Disneyland and the Grand Canyon, explain this. Have a copy of your travel itinerary and reservations. Third, you should be prepared to discuss your ties to your home country and the date and reasons why you will be returning home. This could include things like employment, property, family obligations to your children or elderly parents, or even a pet. Although you may have “future immigrant intent,” demonstrating your ties to your home country shows that you do intend to return in order to put all of your affairs in order before immigrating to the U.S. when that time arrives. In other words, although you do eventually plan to immigrate to the United States, you are not yet ready. You could consider traveling with copies of the following documents, with English translations, if applicable to your situation:

  • Letter from your employer stating that you are expected back at work on a specific date or your child’s school;
  • Lease or property ownership documents;
  • Documentation of upcoming medical appointments or other important obligations;
  • Anything that helps to demonstrate your need or obligation to return to your home country.

Even if you have filed the I-130 petition on your own, you may want to speak with an immigration attorney who could help you to draft a letter to carry with you and present to a CBP officer if questions arise about immigrant intent. The letter should reiterate that an I-130 has been filed on your behalf, the remaining steps in the process and the requirement for you to return to your home country for your medical exam and consular interview, and discuss any ties to your home country.

If you do not possess any of the above-described documents, you should be prepared to talk about the specific purpose of your visit. Have you planned this visit specifically to be there for your parents’ 50th wedding anniversary party of some other significant event? Explain this, and bring a copy of any documentation, if available.

If an I-130 has been filed for you, and you come from a country that requires a visitor visa but do not have one, it will be difficult to obtain while the I-130 application is pending. A consular officer will only grant a visitor visa if the applicant does not have immigrant intent. As explained above, an officer is more likely to approve an application for a B-2 visitor visa if you can explain why you need to visit the United States while your I-130 is pending and an approval may be more likely if there is some urgency or a compelling reason for your visit and why you will be returning to your home country. That being said, it is typically difficult to obtain a visitor visa, which requires

Finally, keep in mind that your entry to the U.S. is ultimately at the discretion of the CBP officers who you encounter upon your arrival. Be prepared to speak confidently about the purpose of your visit and intent to return home until an immigrant visa is available for you and you have followed all proper procedures, and you should be able to overcome suspicions of immigrant intent.

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