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201B INA Spouse of a USC - Q&A

User Question: Hi!
I just want to know more about my case. My wife and 2kids 6 and 7yrs old immigrate here in US last august 2010. They got their immigration benefits from my wife mother who is a US citizen under category of F2B-unmarried daughter of US citizens, during that time we decided not to get married to give way on her petition and also for the two kids to be eligible.

After my wife got her Green card last September 2010, my wife go back to the Philippines and we decided to get married last January 2011, last February 7, we came back here in US (my wife as an LPR and I as a tourist visa) and already file I-130 last February 21,2011. The USCIS already receive my petition. We receive I-797C, notice of action from USCIS confirming that they had receive my petition with priority date of February 21, 2011 under preference classification of 201 B INA SPOUSE OF USC. Does my preference classification is correct? Because I think it’s only for the spouses of US citizen and my wife is only LPR. Also, how long will be the process? Can I wait for my case to become current while I’m on a tourist visa (I am only allowed here to stay for 6months, I have 5 months to go) and adjust my status here?

Hoping you will answer my question.

Attorney Curtis:  Thank you for your post. It sound like this was misclassified by the USCIS. You can determine the current processing times by looking at the visa bulletin. The current processing time is about 3 years but this changes all the time. You have to depart the U.S. when your the stay allowed (as indicated on your I-94) expires. If you do not depart you will have problems in the future. The short answer is that you can't stay in the U.S. while you are waiting for visa to come current.

User:  thank you for your immediate response...
I am thinking also that USCIS misclassified my preference but how can i notify them? also, i will depart US before my I-94 expire but considering that it will take 3yrs for my visa to become current and i have my family here in US (my wife and 2 kids), do you think i can go back here in US every year to visit my family using my tourist visa? because its a hard situation for my wife to work and take care of the kids. Im just worried that immigration officer at the port of entry might not allow me to enter US due to my pending petition that they might think that im planning to stay in US then file adjustment of status and no plan of going back to the philippines for consular processing even though its not my intention. what will be the best reason to re enter US? do i need to tell them (immigration officer at the port of entry) with my pending petition and that my whole family is already in the US?

thank you very much

Attorney Curtis:  You could send them a letter inquiry asking them to clarify the classification on the receipt notice. 

You can return to the U.S. on your visitors visa as long as it is valid. However, the visa only allows you to present yourself for entry at the U.S. border and doesn't guarantee you will be allowed entry.

You should also be cautious about not coming too often or spending too much time in the U.S. on a tourist visa. At some point the immigration officers might start to think you are using your tourist visa like a green card, cancel your visa and even place you in expedited removal proceedings for being an intending immigrant without an immigrant visa.

I am not saying this will happen in your case but it is something you should be mindful of.