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If I leave the U.S. and then my EB-2+NIW petition gets approved- will I be allowed back on a tourist visa to file the I-485?

Los Angeles, CA |

Hello. I got a RFE from immigration a few days ago to my EB-2 + NIW. My tourist visa will expire in late June. I already extended it twice (I had special circumstances that convinced immigration to extend it to this extent) so in June I'll already be in the U.S. for a year and a half on a tourist visa.

I'll do my best to answer the RFE as soon as possible because I want to get a reply while I'm still in the U.S. so I could avoid the consular processing back in my country, if the petition gets approved.

My question: If I leave the U.S. to for a month or two (not to my country, let's say to Canada) and my EB-2+NIW petition get approved during that period- will I be allowed back into the states on a tourist visa so I can file for a green card from inside the U.S?


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Attorney answers 3


No, you can not use a B-2 to enter with the purpose of adjusting status to that of a resident.

You will need to Consular process.

Don't be afraid of CP is cheaper and quite often faster than dealing with CIS.

PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.



NYC EXPERIENCED IMMIGRATION ATTORNEYS; email:; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.



(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.