Services
About
Contact
On 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.
In some circumstances, elderly parents, cohabitating partners, and other household members of principal nonimmigrants may be ineligible for derivative visa status. A “household member” is a 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 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 partners). Such individuals may seek a B-2 visa or B-2 status to allow them to live in the US with a principal nonimmigrant visa holder 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 for the duration of the principal’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.
This policy does not change eligibility requirements for change 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 evaluating an application for change to or extension of B-2 status, USCIS will consider the cohabitating partner’s relationship to the nonimmigrant principal a favorable factor in allowing the household member to obtain or remain eligible for B-2 classification.
When considering a change of status and/or multiple extensions for a cohabitating partner or other household member, the finite nature of a US stay–rather than the duration of the stay or number of extensions–is controlling with regard to nonimmigrant intent. Nonimmigrant intent is required for B-2 issuance: the applicant should not intend to enter the US for an indefinite or permanent stay. A visit should be temporary, even if the applicant may extend B-2 status several times over several years to match a principal alien’s extended course of study (or employment).
While USCIS must adjudicate an I-539 (B-2) 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, this may be considered negative factors in adjudicating a B-2 change or extension of status. That is, USCIS may terminate a nonimmigrant’s authorized period of stay if it becomes aware that such individual intends to remain in the US indefinitely.
Various decisions uphold USCIS’s decision to deny a change of status when it detects immigrant intent.
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 business visit when the actual purpose was to seek acceptance at a school. Matter of Le Floch, 13 I&N Dec. 251 (BIA 1969): The Board ruled that an applicant’s claim that a consular officer misinformed her about the need for a student visa was insufficient to justify her entry as a visitor.
Seihoon v. Levy, 408 F. Supp. 1208 (D. La. 1976): Upheld denial of an application to change status based on a finding that a rapid sequence of events leading to school enrollment is sufficient to find preconceived intent to change status to circumvent the visa process.
These decisions suggest that use of a B-2 rapidly followed by an application for another visa type may result in denial of a request for change or extension of status or adjustment to permanent residence.
USCIS should give favorable consideration to a cohabitating partner or household member applying for a B-2 for the duration of a principal’s stay. This assumes that the applicant is otherwise eligible.
Finally, USCIS underlines that the Memorandum is not binding on the agency.