Earlier this year I married a U.S. citizen. However, I am not interested in residing permanently in the United States since we both have steady jobs outside the country. All I want is to be able to travel temporarily into the United States for pleasure, once or twice a year for a couple of weeks each time. I want to know if I can just apply for a new B-1/B-2 tourist visa to travel into the United States or if my husband needs to file an I-130 petition for alien relative and I-129 and K visa thereafter—which I understand would be the right process if I ever wanted to adjust status or become a U.S. permanent resident.

A This is really up to the discretion of the consulate and once you are at the US port of entry, up to the Customs and Border Protection (CBP) officer. Consulates have the discretion to issue you a B visa despite your presumed immigrant intent. If the Consulate Officer is convinced that you will return to your home country, then he/she will issue the B-1/B-2 visa.

Alternatively, if you were to apply for an immigrant visa based on your marriage to a U.S. citizen, it would take about 9-12 months before you are able to come to the United States. Thereafter, you will need to show that you continue to maintain your legal permanent resident status, which might be difficult given that you will only visit the country for two or three weeks at a time. The CBP officer may see your sporadic trips and come to the conclusion that you have abandoned your permanent resident status, unless you apply for and receive a re-entry permit from United States Customs and Immigration Service (USCIS) before you leave the country. So you may run into issues with this situation.

Q Last year I applied for an H-1B visa at the U.S. Consulate in my home country. Unfortunately the visa was denied because the Consulate requested the Federal tax returns for the end-client company where I would be ultimately placed. Thereafter, I withdrew my H1B visa application and received confirmation that the application had been withdrawn. Subsequently, I checked the status of the H-1B petition on the USCIS website and noted the following: “This case has been received from the State Department with a request we review it.” Please let me know the implications.

A Typically, the Consulate will return the application to the USCIS for review and recommendation for revocation. As far as you are concerned, you may become subject to the quota in the future if you never held an H-1B status before. Your employer may also become subject to a USCIS investigation. Some reasons the Consulate may do this could be because they discovered that the employee had been placed on bench and did not get paid; or some other information that demonstrates that the employer has been in violation of the H-1B requirements.

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 453-5335.   

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