B-2 visa classification is appropriate for cohabitating partners of long-term nonimmigrants to the US provided that the B-2 visa applicant can overcome INA Section 214(b), which requires a showing of a US visa applicant’s significant ties to her home country or to a country outside of the US. The Foreign Affairs Manual (FAM) has been revised to expressly incorporate this long-standing Department of State interpretation. Note that as of June 2013, same-sex couples who are legally married now qualify for the same spousal immigration benefits as opposite sex couples, including qualifying as an immediate relative for green card purposes, or qualifying for nonimmigrant visa dependent status to accompany a spouse to the US for work or study.
US visa posts frequently encounter cases involving long-term nonimmigrants in various US visa categories (A, G, NATO, F, J, M, E, H, I, L, etc.) who have a cohabitating partner who wishes to accompany a principal visa applicant to the United States. As explained in 9 FAM 40.1 N1.2, unless a relationship is recognized under law as being fully equivalent in all respects to a legal marriage and grants the parties all of the same rights and duties as a traditional marriage, a cohabitating partner cannot qualify for derivative US visa status along with a principal visa applicant. However, such visa applicants may be classified as B-2 visitors provided that they are otherwise qualified for B classification. This is true for both opposite and same-sex cohabitating partners.
The availability of B-2 visa classification in such cases is apparent from existing FAM guidance at 9 FAM 41.31 N11.4, which provides that “dependents of nonimmigrants who are not entitled to derivative status, as in the case of an elderly parent of an E-1 alien…, may be issued a B-2 via.” Although the examples in the FAM note involve relatives, the same logic applies to cohabitating partners.
Accompanying one’s significant other who is temporarily working or studying in the US would be considered travel for pleasure, within the meaning of INA § 101(a)(15)(B). The primary purpose of travel is controlling. Thus, if the primary purpose of the cohabitating partner or family member is to accompany the principal alien, then B-2 visa classification is appropriate. Therefore, the activity is consistent with B-2 status as long as the accompanying partner does not intend to work in the US. If the partner does intend to work in the US, s/he will need a temporary work visa that permits such planned activity.
The fact that a cohabitating partner may be living in the US for an extended period of time is not a bar to B-2 visa classification. Cases of this type are governed by 9 FAM 41.31 N2.4, which provides:
“The period of time projected for the [B visa] visit must be consistent with the stated purpose of the trip. The applicant must establish, with reasonable certainty, that departure from the United States will take place upon completion of the temporary visit. Although temporary is not specifically defined by either statute or regulation, it generally signifies a limited period of stay. The fact that the period of stay in a given case may exceed six months or a year is not in itself controlling, provided the consular officer is satisfied that the intended stay actually has a time limitation and is not indefinite in nature.”
Thus, in evaluating these cases, posts should not focus on the absolute length of the stay; rather, posts should focus on whether the stay has some finite limit. For example, the temporariness requirement would be met in a case where the cohabitating partner will accompany, and depart with, the principal US visa applicant on a two-year work assignment or a four-year degree program.
As in any B visa case, a principal US visa applicant’s accompanying partner must still establish that s/he has a residence abroad that s/he does not intend to abandon. In determining whether the individual can meet this burden, posts should not focus on the duration of stay per se, but rather, should examine the B-2 applicant’s ties abroad and the likelihood that s/he would stay in the US illegally after the principal visa applicant departs.
In making this assessment, it is appropriate to consider the B-2 visa applicant’s current circumstances and their prospects in their home country upon return, as well as the strength of their relationship with the principal US visa applicant, as well as the principal US visa applicant’s own ties abroad. For example, a US visa applicant who is part of a couple who have lived together for many years, and who are both well-established with strong ties to their home country would normally be able to overcome 214(b). Conversely, a “partner” (boy/girlfriend) who only recently entered into a relationship with the principal and who has weak ties of his/her own may have greater difficulty demonstrating a residence abroad.
Posts should note that principal visa applicants in some visa categories (i.e., H-1 and L) may be statutorily exempted from INA 214(b), or may not be subject to the residence abroad requirement (e.g., A, G, E, I, O, R). Their accompanying B-2 partners, however, are not exempt from the residence abroad requirement or from INA 214(b).
Although accompanying partners may be issued a B-2 visa to undertake stays of an extended duration in the United States, their initial period of admission into the US may not be sufficient to accommodate their planned stay. USCIS regulations allow a maximum initial admission in B status of only one year, and most often, USCIS grants B visitors an initial admission of six months. However, the initial period of admission is extendable in six month increments, and there is no absolute limit on the maximum length of stay available in B-2 status. Posts should use visa annotations to indicate the purpose and length of stay in such cases, as that will increase the likelihood that the inspector grants the maximum possible admission period on initial entry and will facilitate subsequent extensions.
In some cases involving extended stays, posts should take care to warn accompanying partners of the need to apply for extensions of stay. Posts should also explain the limits of B-2 status and the types of activities that are not permissible in B-2 status (such as employment in the US).