Have an immigrant visa petition pending but want to visit the US? Loop Jamaica

The content originally appeared on: Jamaica News Loop News

Many people have a US family member and or employer petitioning for them, meaning that there is an application for them to live permanently in the USA as a green card holder.

Simultaneously, they may also have a B1/B2 visa, which allows them to visit the US for short periods or specific business trips.

Don’t forget that the B1/B2 visa does not allow the visa holder to accept any type of employment, nor does it allow the holder to begin a course of study in the North American country.

They may also hold nonimmigrant visas in other visa categories, such as student visas (F1s), specialty occupations (H1Bs), temporary agriculture worker (H2As), temporary non-agriculture worker (H2Bs), or a visiting university student work visa (J1s), or even diplomatic visas (As).  

These persons sometimes are afraid to travel to the US while their immigrant petitions are ongoing. There is absolutely no US immigration law that prevents a nonimmigrant visa holder who has an immigrant petition pending from travelling to the US for any legitimate purpose. So, it is a myth to think otherwise. 

It is, however, important that you do a few things to ensure that there are no problems.

State that you have an immigrant visa petition pending

On your nonimmigrant visa application, make sure to write that you have an immigrant visa petition pending. It can be as simple as writing something like “my parents are filing for me” or “my workplace is filing a green card for me”.

If someone is completing the application form for you, please make sure that you tell them about this immigrant petition and that you carefully review the application yourself to see that this information is clearly stated. 

If this is not done, you could be accused at the nonimmigrant visa interview of trying to hide the fact of the immigrant visa petition. Worse yet, you could also be accused of deliberately trying to get a nonimmigrant visa to the US and then once there, you will try to find a way to stay and not return to your home country.

None of these scenarios are good ones and almost always end in a denial and maybe even a permanent ban. So, exercise great care on these nonimmigrant visa applications.

State that you have relatives in the US petitioning for you

Ensure that you write on your nonimmigrant visa application that you have relatives in the US at the appropriate sections who are petitioning for you.

So, for example, if it is your parents, spouse, children, or siblings who live in the US, please place their detailed information on the application form as requested (eg name and address).

Disclose if you had an immigrant visa petition approved, withdrawn or denied

If you had an immigrant visa petition that was approved, withdrawn or denied, ensure that you disclose that on the nonimmigrant visa application. This might have sometimes happened when applications were made when persons were very young or for married persons.

For young persons, it makes sense to ask parents if there had ever been any petitions, do not assume.

This is very important. If you are found to have deliberately omitted this information, it could lead to a denial of your current nonimmigrant visa application.    

Adjustment of status

Finally, after you have entered the USA on your nonimmigrant visa, as someone with a pending immigrant visa petition, on your arrival, you may be asked if you are planning to adjust status versus consular processing. This sometimes confuses people and out of fear that the immigration officer might drive into you by their belligerence, you may say something incorrect because you don’t understand the terms they are using. 

Adjustment of status means that you attend an interview in the US to get your green card, and consular processing means that you will attend an interview at the US Embassy in your home country to get your green card application approved. 

It is important to indicate to the immigration officer that you are going to be going to the US Embassy in your country for your immigrant visa interview when you receive the interview date.

In fact, you should point out to the immigration officer that on your immigrant petition, it says so clearly that you are going to the US embassy in whatever specific city and country that is listed.

If you mistakenly tell the immigration officer that you are going to adjust your status, they will say that you had a dual intent when you applied for and received the nonimmigrant visa. Dual intent means that you did not actually want the nonimmigrant visa (eg to travel to visit family) but rather it had been your intention all along to arrive in the US and not return to your home country.

They may then take the step of cancelling the nonimmigrant visa that you have and send you back to your home country, where you will have to wait until your immigrant visa application is hopefully, approved, before you can journey to the US. 

So be cautious in your nonimmigrant visa journey, and don’t let myths or bad information prevent you from accessing all the benefits available on it or ruining your immigrant visa journey.

*This article does not constitute legal advice and is intended for informational purposes only.

Nadine C Atkinson-Flowers is admitted to practice in the USA and Jamaica. Her US practice is in the area of immigration, while her Jamaican practice areas include immigration and general legal consultancy. She has been an attorney for over 15 years in Jamaica and has written articles for several legal publications. She is passionate about access to justice issues and volunteers with several legal, business, children and community service organisations in Jamaica and the US. She can be contacted at [email protected]