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Same-Sex Partners, Cohabitating Partners, B-2 Visa: USCIS Memo

Brooklyn Bridge, NYCOn August 17, 2011, USCIS issued a Policy Memorandum regarding B-2 Visa Status changes and extensions for cohabitating partners, including same-sex partners and same-sex spouses, and other nonimmigrant household members, along with related revisions to the Adjudicator’s Field Manual (AFM).

Background of Discretionary B-2 for Cohabitating Partners, including Same-Sex Partners, and Other Household Members

In some circumstances, elderly parents, cohabitating partners, and other household members of principal nonimmigrants may be ineligible for derivative visa status. For purposes of the USCIS Memorandum, a “household member” of a principal nonimmigrant visa applicant or visa holder is an non-US national regularly residing in the same dwelling as a principal nonimmigrant, with whom the principal nonimmigrant maintains the type of relationship and care as one normally would expect between nuclear family members.

Some circumstances make it inconvenient or impossible for spouses or children of principal nonimmigrant aliens to apply for the appropriate derivative nonimmigrant visa status (e.g., same-sex spouses, unmarried same-sex partners or unmarried partners). Such individuals may seek a B-2 visa, or change status to B-2, to allow them to reside with a principal nonimmigrant visa holder in the US in another temporary visa status (i.e., H-1B, F-1, etc.).

In these situations, the Department of State (DOS) provides for issuance of B-2 visas to these household members. DOS guidance directs consular officers to notate a B-2 visa with the principal nonimmigrant’s visa type and duration, and to advise the B-2 visa holder to seek admission for one year at the point of entry if the B-2 visa holder plans to stay in the US more than 6 months.

Applicants may also seek extensions in 6 month increments from USCIS for the duration of the principal alien’s nonimmigrant status. To date, USCIS has published no guidance on B-2 visa extensions. Therefore, USCIS notes that this Policy Memorandum is intended to ensure USCIS adjudication of these applications uniformly and consistently with the manner in which DOS issues the visas.

Policy Concerning Discretionary Change or Extension of B-2 Visitor Visa Status for Cohabitating Partners including Same-Sex Partners, and Other Household Members

This policy does not change eligibility requirements for change of status to B-2, or extension of B-2 status. Rather, it clarifies that such a change and/or one or more extensions are appropriate in the exercise of discretion for household members, including the cohabitating partner (including a same-sex partner) of a principal nonimmigrant visa holder, when other eligibility requirements are met.

When evaluating an application for change to or extension of B-2 status based on cohabitation, the cohabitating partner’s relationship to the nonimmigrant principal alien in another status will be considered a favorable factor in allowing the household member to obtain or remain eligible for B-2 classification.

Nonimmigrant or Immigrant Intent

It is important to note that, when considering a change of status and/or multiple extensions for a cohabitating partner or other household member, the finite nature of the stay in the US–rather than the duration of the stay or number of extensions sought–is controlling with regard to nonimmigrant intent.  (Nonimmigrant intent is required for issuance of a B-2: this means that the applicant has no intention of using that B-2 to enter the US for an indefinite or permanent stay.) For example, a visit should be considered temporary, even if the status may be extended several times over several years to match an extended course of study (or employment) undertaken by the principal alien.

However, it is critical to note that, while the I-539 (B-2) application must be adjudicated on its own merits, a finding that the principal nonimmigrant lacks nonimmigrant intent is a negative factor in the exercise of discretion (for example, if the principal nonimmigrant visa holder has applied for a Green Card, i.e., filed forms I-140 or I-485, these actions may be considered to be negative factors in adjudicating a cohabitating partner or other household member’s B-2 change of status or B-2 extension of status application). That is, USCIS may terminate a nonimmigrant’s authorized period of stay when it becomes aware that a nonimmigrant intends to remain in the US indefinitely.

Precedent Regarding Immigrant Intent

A series of precedent decisions and court cases uphold USCIS’s decision to deny a change of status when it detects immigrant intent–or intent to stay in the US permanently or indefinitely. Matter of Hsu, 14 I&N Dec. 344 (R.C. 1973), denied a change of status to an applicant who obtained a visa under the pretext of a visit for business when the actual purpose was to seek acceptance at a school.

In Matter of Le Floch, 13 I&N Dec. 251 (BIA 1969), the Board ruled that even the applicant’s claim that she was misinformed by a consular officer regarding the need for a student visa was insufficient to justify entry as a visitor. In Seihoon v. Levy, 408 F. Supp. 1208 (D. La. 1976), the court upheld denial of an application to change status based on a finding that a rapid sequence of events leading to enrollment in a school is sufficient for a finding that the applicant had a preconceived intent to change nonimmigrant status and circumvent the normal visa issuance process.

These decisions suggest that entry on a B-2 visa, or change of status to B-2, rapidly followed by an application for another nonimmigrant or immigrant visa type may result in denial of the request for change of status, extension of status or adjustment of status to permanent residence.

Change of Status for Duration of Principal Nonimmigrant’s Stay in the US

Assuming other eligibility requirements are met, the USCIS Memorandum notes that favorable consideration should be given to a cohabitating partner or other household member of a principal nonimmigrant visa holder if that cohabitating partner or other household member is applying for change to B-2 status for the duration of the principal nonimmigrant’s stay. A “household member” of a principal nonimmigrant is someone who regularly resides in the same dwelling as the principal nonimmigrant and with whom the principal nonimmigrant maintains the type of relationship and care as one normally would expect between nuclear family members, such as a same-sex spouse, same-sex partner, cohabitating partner or parent.

Finally, USCIS underlines that the Memorandum “is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the US, or in any other form or manner.”

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