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My spouse is a U.S. citizen. Can I enter on an ESTA/B2 visa?

By April 4, 2023Immigration
Two tourists with a camera and map

If you are a foreign national and your spouse is a U.S. citizen, you can certainly qualify for a Green Card under the immediate relative category. But some foreign nationals do not want a green card as they do not want to reside in the U.S. permanently, and they just want to visit the US spouse’s family once or twice per year as tourists or come on a vacation. The question that arises is whether they can apply for and enter the U.S. on an ESTA or B-2 tourist visa.

Can I apply for an ESTA/Tourist visa?

The answer is yes. If you are a foreign national and you have a U.S. citizen spouse and you want to visit the spouse’s family or just come to the U.S. on a vacation, you can apply for an ESTA or B2 visa.

The ESTA application is an online application and usually unless you answer “yes” to one of the security questions or have criminal history/immigration violations, the application should be approved. On the other hand, if you apply for a B visa, you will have to go to an in-person interview with a Consular officer. You will have to persuade the Consular officer that you have a non-immigrant intent – your intent is to visit the U.S. only temporarily and you don’t plan to move to the U.S. and reside there permanently and your intent is to just visit family or you are coming for a vacation.

Hypo 1

If both you and your U.S. spouse reside outside the U.S., you can emphasize that at your interview and explain that both of you reside abroad and plan to reside abroad in the future, and your intent is to come to the U.S. and visit the US as a tourist and accompany your spouse while visiting your U.S. family. In this scenario, the B visa would most likely be approved as it seems from the scenario that the applicant resides abroad, plans to visit the US temporarily, and does not plan to stay in the US and adjust status (apply for a green card).

Hypo 2

Your spouse resides in the U.S. and you reside outside the U.S. and you just got married recently. You are applying for a B visa and at your interview you say that you want to come to the U.S. as a tourist, but you also just quit your job and sold a house in your home country. In this scenario, it would be much more difficult to get the B visa approved, since your spouse lives in the US and your ties to your home country are quite weak and the officer may be concerned that you will come to the US and adjust your status – apply for a green card.

In this case, if your plan is to move to the US and reside with your spouse, you should apply for a green card through Consular Processing.

Will the CBP officer give me a hard time when entering the U.S.?

They may. Again, the CBP officer at the border may be concerned that you plan to stay in the U.S. and adjust your status. If they questioned you in the past, they may already see some notes in their system already that you have a US citizen spouse.

When entering the U.S., it will be important to explain what your plan is and why you are coming to the U.S. You should have the return flight home handy as well.

To sum up, there is nothing in the regulations that would prohibit you from applying for an ESTA/B2 visa or from coming to the U.S. on an ESTA/tourist visa if your spouse is a US citizen, but the officers may be concerned that you plan to move to the U.S. and adjust your status to a green card while you are here.

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