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I live currently in Canada and my spouse in the US (but she stays with me for extended periods of time). She will apply for my greencard.

As I understand, this works in two steps: My spouse files form I-130 and afterwards online DS-160.

Question: Is there any point during this process where I cannot enter the US under the visa waiver program?

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    Are you a Canadian citizen? If so, you are not entering the US under the Visa Waiver Program, as Canada is not part of the Visa Waiver Program. Canadians can enter as B2 visitors (and most other types of nonimmigrant statuses) without a visa. – user102008 Nov 30 '19 at 7:26
  • "My spouse files form I-130 and afterwards online DS-160." But not immediately. You guys need to wait until the I-130 is approved, then it gets sent to NVC and the consulate for you guys to proceed with consular processing for the immigrant visa. And an immigrant visa application will be DS-260, not DS-160 (which is the nonimmigrant visa application). – user102008 Nov 30 '19 at 7:27
  • No, I am European citizen living and working in Canada right now. So I am under WVP. – divB Nov 30 '19 at 19:09
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There is no point in time at which you absolutely cannot visit the US as a B2 visitor or VWP visitor. However, entering the US as a visitor requires you to convince the officer that you do not intend to immigrate during this stay. Although intent to immigrate in the future does not prevent you from showing you do not intend to immigrate during this stay, it is much harder to show if you are the beneficiary of a pending immigrant petition from your spouse, as you can easily change your mind after entering and get a green card through Adjustment of Status within the US.

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  • Ok, I see. I know when you apply for greencard WITHIN the US there is a period where you cannot leave the US while greencard is pending. I was afraid something similar exists as well when I apply from outside. I think that shouldn't be so problematic: I can show an active lease in Canada, get a confirmation from my employer that I am working there. If I enter via airport I can even show a return ticket. – divB Nov 30 '19 at 19:06
  • And I've certainly seen anecdotes that suggest that some officers, whether through poor training, incompetence, sheer ill will, or perhaps some reason I cannot think of, sometimes incorrectly assert that future intent to immigrate does disqualify one from entering as a nonimmigrant visitor. – phoog Nov 30 '19 at 23:28
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    @divB that arises because an in-country application is an application for "adjustment of status." If an applicant leaves the country, there is no longer a status to adjust, so the application is technically abandoned. To avoid that, applicants can get "advance parole," but between the submission of the application and the approval of advance parole there is a period during which the applicant's leaving the country would mean having to submit a new application. In your situation, as explained in this answer, the technical considerations are completely different. – phoog Nov 30 '19 at 23:37

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