RFE on a B1/B2 Visa While a Marriage Green Card Petition Is Pending: USCIS Links the Two Cases

USCIS is increasingly cross-referencing a B1/B2 visitor visa extension with a simultaneously filed marriage-based green card petition, issuing an RFE that demands an explanation for how a stay can be temporary when the applicant has declared intent to remain in the US permanently.

In short

• The RFE on the B1/B2 extension directly cited the I-130 petition number and the I-485 filing date for the first time — the agency cross-referenced two separate case files.
• USCIS is suggesting that the applicant withdraw the B1/B2 extension, which will leave her out of status as of August 28 but will not harm the review of the marriage-based petition.
• Even with I-130 and I-485 on file, USCIS can still issue an NTA or a deportation order — the decision remains at the agency’s discretion.
• The absence of Form G-28 for attorney representation may affect how closely the agency scrutinizes discrepancies in the case.
• The 212(e) two-year home-residency rule following J1 status did not apply to the applicant in this case.

How a B1/B2 renewal and a marriage green card petition became linked

In the case under review, an applicant from Brazil entered the US on a J1 visa and spent two full years on it working under the au pair program. Before her J1 expired, she applied to change status from J1 to B2 — the request was approved, after which she received another six-month extension of her visitor visa. It was during this extension that she met her future husband, a US citizen.

The couple married on July 16 of the same year and almost immediately filed marriage-based green card paperwork, including the petition for a relative (I-130) and accompanying forms. It is precisely this sequence — a prolonged stay on a visitor visa ending in marriage and a green card filing almost right after the latest extension — that appears to be what USCIS has started cross-referencing between two separate case files when reviewing the petition.

What USCIS is asking for: the content of the visa RFE and the green card RFE

On the green card petition, the applicant received two Requests for Evidence (RFEs). The first concerned the Affidavit of Support, Form I-864. The second related to documents from the applicant’s spouse’s mother, who is serving as a joint sponsor: USCIS requested her birth certificate and passport. In addition, the RFE asked for six months of bank statements — proof that the spouse had been financially self-sufficient during that period.

A separate RFE arrived for the B1/B2 visa extension, and its substance was fundamentally different. USCIS requested evidence of assets the spouse holds in her home country, while also pointing to a contradiction: the request explicitly referenced the marriage and noted that the applicant had originally promised a short-term stay, then married and intends to remain permanently.

The key detail is that the visa RFE directly references the green card petition. The request cites the I-130 receipt number and states that the application for permanent resident status was filed on August 5. USCIS demanded an explanation of how a temporary stay is consistent with a simultaneous filing for permanent residence.

Why USCIS linked a visitor visa and a permanent residence petition for the first time

The practice of extending a B1/B2 visitor visa until the applicant finds a spouse to file a green card petition with has existed for a long time and was generally treated as routine; immigration attorneys refer to it as a quietly tolerated pattern. Until now, according to practicing attorneys, the visa case and the green card petition were processed by USCIS in isolation — one department apparently did not see what was happening in the other. Across 1,100 consultations reviewed on the channel, there was not a single prior instance of the agency cross-referencing B1/B2 application data with a simultaneously filed permanent residence petition.

Across 1,100 consultations reviewed on the channel, there was not a single prior instance of the agency cross-referencing B1/B2 application data with a simultaneously filed permanent residence petition.

In the case reviewed here, the RFE on the visa extension directly cited the I-130 petition number and the filed I-485 based on marriage, and demanded an explanation of how the stay could be considered temporary when the applicant had already filed for permanent residence. This may indicate that USCIS systems have begun cross-referencing records between different case types — possibly due to the rollout of AI tools, though there is no definitive confirmation of this. Additionally, over the past 10 months the agency has been specifically drawing a distinction between applicants who were already out of status at the time they filed the green card petition and those who still held valid status at that point.

Withdrawing the B1/B2 extension: what it means for the applicant’s status

USCIS is suggesting that the applicant withdraw the B1/B2 extension — this is effectively what the agency is pushing for with its request. If the extension is withdrawn, the applicant will be left without legal status: her visa expired on August 28, and formally, she has been out of status in the country since that date.

USCIS is suggesting that the applicant withdraw the B1/B2 extension — this is effectively what the agency is pushing for with its request.

At the same time, withdrawing the extension is the recommended move: the marriage-based green card petition is filed by the spouse, a US citizen, and for the adjustment of status process, being out of status at the time the petition was filed is not a decisive factor. The logic is to remove the basis on which USCIS is trying to frame the applicant as a visa violator, and to let the focus shift to the review of the permanent residence petition.

Risks of being out of status: NTA and deportation orders with a pending green card petition

Left without status, the applicant could receive a Notice to Appear (NTA) in immigration court or a deportation order — this is explicitly a possibility in the case under review. A pending marriage-based green card petition does not rule out this outcome: the decision to issue an NTA is at the agency’s discretion, even when the applicant holds receipt notices for the I-130 and I-485 forms.

Her prior J1 status does not affect the outcome of the case: the applicant spent two years on it, from 2008 to 2010, but that fact carries no weight for the petition now that she is married to a US citizen. The 212(e) rule is a separate matter: it requires some J1 visa holders to return to their home country for two years before qualifying for other immigration statuses, but in the case reviewed here, this rule did not apply to the applicant.

USCIS itself may interpret the early B1/B2 extension as an attempt to circumvent the rules — and that interpretation appears to be the basis for its position.

Procedural complications: biometrics, Form G-28, and the joint sponsor

Beyond the substantive issues raised by USCIS, the case was complicated by a number of procedural problems.

• Missed biometrics. After the first RFE, the applicant never received a biometrics appointment notice and missed the first scheduled appointment, later rescheduling it.
• Spouse’s biometrics incomplete. About three weeks after the second RFE was received (USCIS dated it September 24), the applicant’s spouse still had not completed the biometrics procedure. A check with USCIS support chat confirmed that the appointment notice had not yet been sent.
• Appointment found only in the online account. A copy of the spouse’s biometrics appointment notice turned up in the USCIS online portal, even though no official notification had been received. The recommendation in this situation is to download the notice from the portal and complete biometrics at the earliest opportunity.
• Joint sponsor for the affidavit. The first RFE concerned documents from the applicant’s spouse’s mother as joint sponsor on the Affidavit of Support form: USCIS requested her birth certificate and passport.
• No Form G-28 on file. The case did not include Form G-28, which notifies USCIS of attorney representation. Its absence is read by the agency as a signal that the applicants are handling the case without a lawyer, and, in the consultant’s assessment, this may affect how closely the agency scrutinizes discrepancies in the testimony.

Its absence is read by the agency as a signal that the applicants are handling the case without a lawyer

Procedural points worth checking

• Biometrics appointment noticerequiredMay not arrive by mail after an RFE — check the USCIS online account
• Spouse’s biometricsrequiredThe appointment notice sometimes appears only in the online portal, with no official notification
• Joint sponsor documentsrequiredBirth certificate and passport — if the joint sponsor is a parent rather than the spouse
• 6 months of bank statementsrequiredProof of independent financial self-sufficiency
• Form I-864requiredAffidavit of Support for the green card petition
• Form G-28Notice of attorney representation — its absence is read by USCIS as a sign the case is being handled without a lawyer

Frequently asked questions

Can a marriage-based green card petition be filed if the applicant is out of legal status at the time of filing?

Yes, being out of status at the time a marriage-based green card petition is filed is not a decisive factor for the adjustment of status process, as long as the petition is filed by a US citizen spouse. This is one reason why withdrawing a visitor visa extension in this kind of situation is not considered a critical risk to the petition itself.

Is it necessary to hire a lawyer and file Form G-28 once an RFE has arrived?

The absence of Form G-28 in a case file is read by USCIS as a signal that the applicants are proceeding without a lawyer, and this may affect how closely the agency scrutinizes discrepancies in the testimony. There is no direct requirement to file G-28, but its absence increases scrutiny of inconsistencies.