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Traveling to the US on a tourist visa or on the visa waiver program

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Frequent visitors to the US often want to know more details regarding the permitted length of time one can stay in the US and how one can lawfully extend his/her stay. The Immigration and Nationality Act provides for separate treatment for those who enter the US under the visa waiver program (meaning, without a visa sticker, but with an electronic travel authorization obtained online) and those who enter on a business or tourist visa (B1/B2).

The visa waiver program, often referred to as ESTA, applies to citizens of 37 countries, primarily from Europe. Visitors from Canada or Bermuda can visit the US visa free under separate agreements, as neither Canada nor Bermuda is a member of the visa waiver. The advantage of visiting the US on the visa waiver is ease and low cost, as the traveler does not have to get an appointment and visit a US consulate. Under the visa waiver, a traveler can stay in the US for up to 90 days. The customs and border inspector determines whether to admit the visitor or not, but if the decision is made to admit a visitor, the visitor will be admitted for exactly 90 days. (There are only two exceptions to this rule. If the foreign traveler’s passport expires within the next 90 days, then admission will only last until the passport’s expiration. Moreover, if the foreign traveler was previously in the US and departed for Canada, Mexico or the Caribbean, then the traveler will normally only be permitted to stay until the expiration of the original 90 day grant.) The greatest disadvantage of visiting the US with the visa waiver is that it is very difficult or impossible for one to extend his/her stay beyond the permitted 90 days. If a foreign visitor stays for more than the permitted period without authorization, even for just for a single day, then the visitor will not be able to use the visa waiver again anymore and will always be needing a visa when visiting the US in the future. (and there is no guarantee that a visa will in fact be granted.) If the foreign visitor overstays the visa waiver by more than 180 days, then a three-year bar to reentering the United States applies, starting from the day of last departure from the US. If the overstay extends to a period greater than one year, then a ten year bar to reentry will apply. The bar is in effect even if the foreign traveler gets married to a US citizen. (but a waiver may be possible in some cases)

A trip to the US with a business or tourist visa (B1/B2) permits the foreign traveler to stay in the US for up to six months. The exact authorized period of stay may vary, as the border officer has discretion to provide for a period shorter or greater than the usual six months. Note that, while a visa may be valid for a period lasting several years, this does not mean that one may visit the US and stay there for the period of validity of the visa. The period of validity of the visa only refers to the time during which a traveler can seek admission to the US, not to the time the traveler can stay in the US after each admission. The later is governed by the stamp placed in the traveler’s passport. Thus, if one has a ten-year visa on her passport, she may visit the US at any point of time during the next ten years – but each visit cannot be longer than the time provided for by the border inspector, normally six months.

Unlike visits under the visa waiver, a visitor with a business/tourist visa is able to seek an extension to his/her stay in certain cases. But if a traveler stays in the US for a period exceeding the authorized period of stay, the visa is automatically invalidated and can not be used again in the future. Similarly to the visa waiver, if the foreign visitor overstays by more than 180 days, then a three-year bar to reentering the United States applies, starting from the day of last departure from the US. If the overstay extends to a period greater than one year, then a ten year bar to reentry will apply.

For the traveler that seeks to visit the US for an extended period of time, a tourist visa is preferred to the visa waiver. But getting a tourist visa isn’t always easy. For individuals from countries that are part of the visa waiver program, the US consulates abroad do not hand B1/B2 visas easily, unless one can justify why visiting with the visa waiver is not an option. And if one does apply for a visa and is rejected, one may have trouble visiting even with the visa waiver – since the electronic system for travel authorization asks the applicant whether he has ever been refused for a visa. Thus, applying for a visa for a traveler from a visa waiver country is a double edged sword – if you don’t get the visa, you may end up not losing the ability to travel on the visa waiver as well.

One of the most common questions asked by travelers that want to stay in the US for extended periods of time, is how soon can they return to the US after a previous visit. There is no set rule – but generally, the longer the stay in the US and the shorter the time of staying outside the US, the more trouble one will have convincing the border guards when visiting. A tourist/business visa is issued for a specific purpose and not for living in the US. Thus it is generally recommended that travelers stay outside the US after each trip for a period of time greater than the period of time for which they were in the US. If a traveler has frequent, lengthy trips to the US, one after the other, then it is likely (and inevitable) to eventually be sent to secondary inspection when arriving to the US for a more extensive questioning. Being questioned by the border guards is not always a pleasant procedure, especially when being at risk of being denied entry. When at the border, there is a difference in the way individuals traveling with a visa are treated compared to those traveling under the visa waiver. When one is denied admission at the border when attempting to enter with a visa, a five-year bar to reentry may apply. On the other hand, when one is denied admission at the border when attempting to enter under the visa waiver, there is no bar to reentry – even though one may no longer use the visa waiver again. In other words, the visa waiver is advantages for the traveler up to the time of crossing the US border – but once the traveler has entered the US, a visa provides for additional rights and options.

(Note that in some cases, the border guards may give the option to the traveler of withdrawing their application for admission to the US, rather than denying the traveler admission. This may be advantageous, as it helps avoid the consequences associates with being denied admission to the US as described above.)

US citizenship for children of US citizens born outside the US.

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There are many ways for a child of a US citizen, born outside the US, to become a US citizen through his/her parent(s). In these cases, there are a number of crucial facts that need to be determined to establish one’s further options. Those facts include the child’s date of birth, whether the child was born during a marriage of his/her parents, whether the US parent was a US citizen at the time the child was born, whether the US parent is the mother, the father or both, whether the US parent has previously lived in the US and at which age and whether the US parent intends to immigrate to the US in the near future.

In particular, there are four ways in which a child born abroad can become a US citizen, as follows:

(1) Obtaining US citizenship at birth. If the child was born during marriage on or after November 14, 1986 to a US parent who has resided in the US for five years or more prior to the child’s birth (at least two years after the US parent turned 14), then the child is automatically a US citizen by act of law, from the moment of birth. Even if the child never was officially recorded as a US citizen, the child is a US citizen and can apply for a US passport at any time in the future. The exact requirements vary in cases of children born before November 14, 1986, in cases of children born out of wedlock or to two US citizen parents.

(2) Obtaining citizenship through Section 322 of the Immigration and Nationality Act. In the case of a child residing abroad who has a parent or grandparent who is/was a US citizen and who was in the US in the past for five years or more, at least two of which after the parent/grandparent turned 14, the child can normally seek US citizenship through INA 322. The process needs to be completed before the child turns 18 and requires a short trip to the US, but there is no requirement that the child or his/her parents intend to immigrate to the United States now or at any point in the future.

(3) Obtaining US citizenship through Section 320 of the Immigration and Nationality Act. If a child immigrates to the US together with his/her US citizen parent and resides in the US in the legal and physical custody of his US parent prior to turning 18, then the child becomes a US citizen automatically, by act of law, under section 320 of the Immigration and Nationality Act. Notice that the child must immigrate to the US and be admitted as a lawful permanent resident for citizenship to be granted. Also note that the US parent and child must intend to reside in the US for citizenship to be granted and not merely to visit – if the parent and the child reside abroad, Section 322 is the appropriate section for obtaining citizenship and not Section 320.

(4) Obtaining US citizenship through the ordinary naturalization process. If the child is 18 years of age or older and has not yet obtained US citizenship, going through the regular naturalization process may be the only way to get citizenship. The child will need to reside in the US for five years as a permanent resident (green card holder) and then will be able to apply for US citizenship. To obtain a green card, the US parent must file a petition for the child – if the child is unmarried and under 21, the process for obtaining a green card is relatively fast and only lasts a few months. However, if the child is married and/or over 21, there may be a lengthy waiting time of many years before the child can lawfully immigrate to the United States and become a lawful permanent resident.

Immigrating to the US based on a petition (invitation) from a US relative

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One of the most common ways to immigrate to the US is through a US relative. There are two types of relatives in US immigration law – immediate relatives and preference category relatives.

Immediate relatives include the spouse (husband/wife) of a US citizen, the parent(s) of a US citizen when the US citizen is over 21 years old and the unmarried child of a US citizen when the child is under 21. The definition of a child includes a stepchild and the definition of a parent includes a stepparent, in those cases where the marriage that created the step-relationship took place before the child turned 18. In general, immigration through an immediate relative is one of the fastest ways to immigrate to the US, since there is no numerical limitation on the number of immigrants admitted each year under this category. In practice, the immigration services are rather slow and it usually takes 5-9 months for the process to be completed.

Preference category relatives include the unmarried sons and daughters of a US citizen when they are 21 years old or above, the married sons and daughters of a US citizen, the siblings of a US citizen when the US citizen is 21 years of age or older, the spouse (husband/wife) of a person who is a lawful permanent resident (green card holder), the unmarried child under 21 of a US permanent resident (green card holder) and the unmarried son or daughter over 21 of a US permanent resident (green card holder). There is a numerical limitation on the number of preference category relatives that can immigrate to the United States each year. Thus, depending on the type of relationship involved, the waiting time to immigrate and get a green card can range from seven to more than twenty years in some cases. After the initial petition is filed by the US relative, the prospective immigrant obtains a date of filing, which is referred to as the priority date. Each month the US department of state issues a visa bulletin, stating which priority dates of preference category relatives can start the immigration process in the present month. For more information, you can refer to the visa bulletin at https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html. The advantage of preference category relatives is that, unlike immediate relatives, the entire family can immigrate based on a single immigrant petition, which includes the spouse (husband/wife) and any unmarried children under 21.

For example, Jelena has a brother who is a US citizen and invites her to immigrate to the United States in 2001. In 2012, Jelena’s turn to immigrate comes (her priority date becomes current as per the visa bulletin). Jelena will be able to immigrate together with her husband and unmarried children under 21, as of 2012. In this manner, a person can immigrate to the US based on a US citizen uncle (sibling of a parent), as long as the immigrant petition is filed early enough, many years before the nephew/niece turns 21 and/or marries.

Changing status from the visa waiver/tourist visa to permanent resident (green card)

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In a previous article, we described three ways one can use to immigrate to the United States based on a marriage to a US citizen. As is clear from the article, one of the main principles in US immigration law is that one must have the appropriate visa before entering the United States. For example, if one is coming to the US to work, a working visa should be obtained before entering the US – one can not enter with a tourist visa, when the intention of the visit is not in agreement with the terms of the visa. Similarly, when one is coming to the US to get married and with the intention of staying in the US after marriage, one needs to have a K-1 visa.

In some instances, one may be able to change status after entering without the need for leaving the United States and obtaining the appropriate visa. For example, a student with a student visa who has been residing in the US for an extended period of time may be able to adjust status to a working visa or a green card by marriage without departing the United States. The determining factor in these cases is that the intention to change status took place after the person entered the United States. For example, if one enters the US with a student visa but has already planned to get married and change status, then one is committing fraud and his/her entry into the country may be denied (which may come with a ban for future entries into the country). If, on the other hand, after entering the US as a student, many months later things change and one decides to get married, then this will likely not be seen as fraud but as a legitimate change in circumstances.

According to this school of thought, one who enters the US as a tourist but who has already arranged to get married and stay, is committing fraud. (But one who is coming as a tourist and has already arranged to get married but departs according to the terms of his/her visa is OK.)

Reading the above, one would naturally wonder how the immigration services are expected to know what one’s intentions were at the time of entry. In reality, in the vast majority of cases, one who enters in the US  on a visa and gets married in good faith almost always is able to adjust status and get a green card without leaving the country.

The situation becomes more difficult when one enters the US on the visa waiver program. Changing status after entering on the visa waiver is problematic and in some cases risky, so it is generally discouraged. The problem when a person enters on the visa waiver is that the person entering forfeits any rights to appear before an immigration judge and essentially accepts his/her deportation should he/she exceed the period of time allowed in the US, which is normally 90 days. Thus, sometimes unexpected outcomes take place when adjusting from the visa waiver. There are cases in which the prospective immigrant enters the US on the visa waiver, gets married, applies to change status to permanent resident, ninety days pass and for one reason or another the prospective immigrant falls into the attention of the immigration services. (For example, because a police officer stopped him on the street or even when appearing for an interview with USCIS.) When one who overstayed the visa waiver comes to the attention of the immigration services, the government has the right and discretion to proceed to a fast track removal from the United States, without the need for a hearing, by using what is known as a 217 order. Anyone removed from the United States is barred from reentering for many years in the future. Thus, in the most extreme case, one who attempts to adjust status from the visa waiver may end up removed from the United States with a ten year bar to reentering. For this reason, before deciding to change status from the visa waiver, one must have a consultation with an immigration attorney and get familiar with the risks associated with adjusting status.

Immigration through marriage to a US citizen

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One of the most common ways to immigrate to the United States is through marriage to a US citizen. While immigrating to the United States based on a marriage is one of the most straightforward ways to immigrate, the procedure is still complicated and confusing in many ways.

There are essentially three ways to go about immigrating to the United States based on marriage and obtaining permanent resident status (green card), for a person who is presently outside the United States. Those ways are as follows:

(1) The US citizen gets married to the prospective immigrant in the immigrant’s own country (or in a third country). Following the marriage, the US citizen files an immigrant petition inviting the prospective immigrant to immigrate to the United States. The immigrant petition is normally filed with a USCIS office in the United States. In about 3-5 months, the immigrant petition is approved and a few weeks later, the petition is forwarded to the National Visa Center in New Hampshire, known as NVC. NVC gets in touch with the prospective immigrant, more documents are collected and a few months later an interview is scheduled with the US embassy/consulate where the prospective immigrant is from. Upon a successful interview, an immigrant visa is issued on the prospective immigrant’s passport that permits the new immigrant to move and establish him/herself in the United States, with the right to work in the US from day one with permanent resident status (green card).

(2) The prospective immigrant travels to the US on a tourist visa or using the visa waiver program for the purpose of getting married to his/her US partner. After the marriage, the US citizen spouse files an immigrant petition with USCIS, just like (1). The prospective immigrant departs the US before the period of stay permitted under the tourist visa/visa waiver expires and waits for a few months in his/her country until the appointment with the US embassy, just like in (1). Essentially, what is described here is the same with what we described in (1), the only difference being that the marriage ceremony takes place in the United States.

(3) The final way to immigrate based on a marriage to a US citizen is by making use of a fiancé visa, known as a K-1 visa. For a fiancé visa, the US spouse submits a petition inviting the foreign fiancé to come to the US for the purpose of getting married and staying there. Once the petition is approved, it is forwarded to the US embassy/consulate where the prospective immigrant is from and 4-8 months later the foreign spouse arrives in the United States with the K-1 visa in hand. After entering the US, the foreign spouse must marry the US citizen who filed the K-1 visa petition within 90 days after arrival. Contrary to (2), after the marriage, the foreign spouse can remain in the US and apply for adjustment of status to become a lawful permanent resident (green card holder), a process that takes 4-8 months, without the need to leave the United States. The advantage of a fiancé visa is that the newlywed couple can live together after the wedding from the very first day. On the other hand, the immigration process with the K-1 visa is lengthier and more expensive, since documents need to be filed both before and after the marriage, and getting a fiancé visa takes several months to begin with.

From the above, it is clear that immigrating to the US based on a marriage to a US citizen is not always a quick process and in many cases the married couple may have to live separately for extended periods of time. In addition, there are a number of potential obstacles that will need to be overcome in order for the foreign spouse to be able to successfully immigrate, such as a prior criminal record, inability of the US spouse to show sufficient income as required for the affidavit of support, lack of evidence showing that the marriage happened in good faith e.t.c.

Last, many readers, after reading the three options available for immigrating to the United States based on a marriage ask the very natural question – Can I just come to the US as a tourist with a tourist visa or under the visa waiver, get married and then stay without the need for leaving and without the need for visiting the US embassy/consulate in my home country? The answer to this question is given in the next article.