Standard advice = “Your pending immigrant visa petition is proof of your immigrant intent. Don’t even bother applying for a visitor visa because you’ll be refused under 214(b).”
The standard advice is wrong; it is contradicted by the express text of the Foreign Affairs Manual (FAM). And I know it’s wrong for a second reason: as a consular officer I issued these visas.
9 FAM 401.1-3(E)(2)(e) states:
You may issue visitor visas to applicants with IV applications pending or, with IV petitions pending with the United States Citizenship and Immigration Services (USCIS). You must be satisfied that the applicant’s intent in seeking entry into the United States is to engage in activities consistent with B1/B2 classification for a temporary stay and that the applicant has a residence abroad which he or she does not intend to abandon. While an active IV application or petition is reflective of an intent to immigrate, unless you have reason to believe the applicant’s true intent is to remain in the United States until such a time as an IV becomes available, you may issue the visa if the applicant is otherwise qualified. (emphasis added)
This FAM section deserves a close reading and is striking precisely because of the burden structure. The default in the provision is issuance. The officer “may issue” if the applicant is otherwise qualified. Moreover, a refusal requires the officer to affirmatively have “reason to believe the applicant’s true intent is to remain in the United States until such time as an IV becomes available.”
Perhaps most importantly, the petition alone is expressly insufficient to deny the B1/B2 visa; the FAM section states that a pending petition is “reflective of an intent to immigrate,” and then the FAM section goes on to instruct B1/B2 issuance unless the officer has reason to believe the applicant’s true intent is to enter and remain in the United States until the immigrant visa becomes available.
Here is the final takeaway from this FAM section: at the visa interview the question is not whether the applicant intends to immigrate – the government already knows that he or she does – they filed a petition saying so. The question is what do they intend to do on this trip.
If the FAM envisions issuance of a B1/B2 visa with a pending immigrant petition, then why is the standard advice mentioned at the beginning of this article so prevalent? The reason is that as a statistical matter these applicants are in fact refused at very high rates, not as a matter of law but for all of the reasons I have discussed in previous articles: 2.5 minute visa interviews, complex cases, applicants relying on documents instead of presenting coherent, spoken narratives. Under time pressure, complexity often cedes to refusal; and these visa applications are textbook “complex.” The standard advice is prevalent, then, as a function of faulty empiricism, or assuming a causal relationship exists where it doesn’t as a matter of law.
When an applicant had a pending immigrant petition, here is what was happening on my side of the window, and here is what separated the applicants I approved from the ones I refused. First, I looked to see if the applicant disclosed the pending immigrant petition on the DS-160. If it wasn’t disclosed, all things being considered, it was likely fatal. The DS-160 asks directly whether an immigrant petition has ever been filed on the applicant’s behalf, and a principal beneficiary who answers “No” is generally considered to have made a misrepresentation (9 FAM 302.9-4), which risks a 212(a)(6)(C)(i) finding, a permanent bar. The standard advice, sadly, has the propensity in some cases to cause applicants to conceal their pending immigrant petitions.
Assuming it was disclosed, I then asked the applicant about the pending petition. I compared the verbal answers to what I could discern from the records I had before me. I was looking for honest, forthright responses; something along the lines of the applicant fully “owning” his or her intent to immigrate, but at the duly authorized time under the law. I wanted to hear about their life in their home country, and how that life kept them occupied and sustained while they waited. I checked the priority date and how many years from current, to understand if immigration was imminent or distant. I sought to understand the nature of the trip. A discrete trip with a fixed, verifiable endpoint is what 9 FAM 401.1-3(E)(2)(e) envisions: a wedding, a graduation, a business obligation. I assessed the applicant’s circumstances in their home country: stable employment, family in place. I inspected international travel, and particularly international travel after the petition was filed. Has the applicant left his or her country since the petition was filed and returned? And above all, has the applicant traveled to the United States since the petition was filed and returned to the home country? This last consideration being nearly ipso facto proof that a pending immigrant petition and temporary travel to the United States can coexist.
All visa issuances and denials carry a contemporaneously written case note that explains, in perpetuity, why the consular officer issued or denied the visa. The case notes are typically short, cutting right to the heart of the matter. In these cases, the consular officer is asking himself or herself: “can I compose, in ninety seconds, a case note that justifies issuance over a documented immigrant intent – and will this case note survive review and scrutiny by the consular chief and immigration officials at the port of entry?”
Always, but especially here where there is a pending immigrant petition, the applicant’s real job is to “hand” the officer a sentence or two that the officer can make into the case note. Put another way, a prepared applicant makes that case note writable:
Applicant disclosed pending I-130, priority date approx. six years out. Traveling for daughter’s graduation at University of [X], May 12-19. Employed nine years at [X] where he does [X]. Two prior U.S. trips since petition filing, both timely departures.
When the facts assemble themselves into a paragraph, the visa should be issued. When the consular officer has to strain to assemble these facts, there is a strong likelihood that the visa doesn’t get issued.
Final thoughts.
First and foremost, 9 FAM 401.1-3(C) is a boundary, and makes entering the United States on a nonimmigrant visa for the specific purpose of adjusting status inconsistent with the B1/B2 visa. What I have described above about gaining a B1/B2 visa while there is a pending immigrant petition is for the client or applicant who genuinely intends a temporary trip to the United States to visit while they are otherwise waiting in their home country for the immigrant visa. Entering the United States on a B1/B2 visa with the purpose to adjust status is a violation of the law.
Second, 9 FAM 401.1-3(E)(2)(e) lives in the B visa residence-abroad guidance. The underlying principle extends by analogy to other categories, but the citation above is a visitor visa provision.
Third, notwithstanding anything above, these applications remain discretionary and demanding adjudications. Risk of refusal is real, and I encourage the reader to see my article The Asymmetric Stakes of a First-time Visa Application and the Prior Refusal Spiral. The prior refusal spiral applies in these cases: there is high reward, real downside, and this should not be undertaken as a casual experiment.
In sum, the standard advice falls short because the law permits more than folklore allows, but only for the applicant prepared to the standard that the consular officer’s own case notes must meet. If you have an interview scheduled, we invite you to consult with us before your interview, not after your denial.
