Can I Still Qualify For A Tourist Visa If I Have a Pending Immigrant Petition? Because of the very long waiting line for immigrant visa petitions, some clients have asked us if it is possible for their relatives to come to the United States on a tourist visa, so that they would get a glimpse of America and taste our way of life here. This is particularly true for their children or grandchildren whom they would like to bring to Disneyland, Legoland and Seaworld while their young, imaginative minds could still appreciate the fantasies these theme parks provide. So, the important question is can their relatives qualify for tourist visas although they are beneficiaries of pending immigrant petitions?For answers, we visited the website of the U.S. Embassy in Manila where we found the following message:Having an immigrant petition on file is not grounds (sic) for an automatic refusal for a non-immigrant visa. The consular officer reviewing your non-immigrant visa application will require strong evidence that you are not intending to immigrate at this time and that you are returning to the Philippines after your planned and temporary visit to the United States.What this means is, yes, it is possible for you to get a tourist visa even if you have pending immigrant petition. However, your chances of getting it are less than when you do not have a pending immigrant petition.Please bear in mind that the Immigration and Nationalization Act (INA) presumes that every tourist visa applicant intends to overstay. Section 214(b) of the INA states that Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status. Because of this, the applicant has the burden to prove that he will return to the Philippines on time. As expected, Section 214 (b) is the most common reason why a B-2 visa application is denied. (Please see our previous article entitled Dreaming of a White Christmas). That is the rule for tourist visa applicants without a pending immigrant petition, so you can just imagine how harder it would be for your beneficiary-relative to get a tourist visa. Being a beneficiary of an immigrant petition, in itself, would tend to show immigrant intent. Therefore, the applicant with a pending immigrant visa petition must convince the consular officer during the interview that although he or she has the intention to immigrate to the United States, it will be for some future time yet. In other words, the applicant is not yet ready to immigrate now because of important matters that require him or her to return to the Philippines, like a regular job or business, sufficient properties and social ties (such as being the president of a reputable civic organization). In this regard, the more stable and lucrative the job or business is, the more the officer might be convinced to grant the tourist visa. On the other hand, like in the ordinary applications, the consular officer considers certain circumstances as red flags, such as being unemployed, single and of marrying age. One final advice. Do not ever attempt to conceal during the interview the fact that you have a pending immigrant petition. The current application form (DS-160) no longer asks if anyone has ever filed an immigrant visa petition on your behalf. Hopefully, this may be because the issue is irrelevant to your tourist visa application, but it is more likely because they would already know from their data system if you have or had a petition filed for you. We know of one applicant who was asked by the officer if he knew a certain person, and he denied it. It turned out, that person was his adoptive parent who had previously filed a petition for him. Of course, the officer knew, and the poor guy could not extricate himself from the trap.Atty. Rogelio Karagdag , Jr. is licensed to practice law in both California and the Philippines. He practices immigration law in San Diego and has continuously been a trial and appellate attorney in the Philippines since 1989. He travels between San Diego and Manila. His office address is located at 10717 Camino Ruiz, Suite 131, San Diego, CA 92126. He also has an office in the Philippines at 1240 Apacible Street, Paco, Manila, Philippines 1007, with telephone numbers (632)522-1199 and (632)526-0326. Please call (858)348-7475/(858)536-4292 or email him at email@example.com. He speaks Tagalog fluently. Articles written in this column are not legal advice but are hypotheticals intended as general, non-specific legal information. Readers must seek legal consultation before taking any legal steps.
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