August 26, 2011 | 2:12 pm

B-2 visitor visa for co-habitating partners of non-immigrant visas

Posted by Cedric M. Shen

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On August 17, 2011, the USCIS issued a policy memorandum allowing a “household member” of a principal non-immigrant to extend or to change status to a visitor/B-2 visa.

“In some circumstances, elderly parents, cohabitating nonimmigrant partners, and other household members of principal nonimmigrants may be ineligible for derivative status. For purposes of this memorandum, a “household member” of a principal nonimmigrant is an alien 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. There are also circumstances when it may be inconvenient or impossible for spouses or children of principal nonimmigrant aliens to apply for the proper derivative status. These aliens may seek B-2 visas, or change their status to B-2, to allow them to reside with the principal nonimmigrant visa holder who is in the United States in another status (H-1B, F-1, etc.) . . . . [The Department of State] directs consular officers to notate the 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 United States more than 6 months. Applicants may also seek extensions in six month increments from the Department of Homeland Security (DHS) for the duration of the principal alien’s nonimmigrant status.”

This is welcome news for family members, such as spouses or children, of a principal non-immigrant visa cannot obtain derivative status through the principal non-immigrant’s visa.  This memorandum clarifies that the USCIS is not changing the eligibility requirements for change of status to B-2, or an extension of B-2 status. The B visa is generally limited to temporary visitors to the United States for up to six months, or for foreigners coming to the US to conduct business, to attend meetings, or to negotiate contracts, etc.  However, the memorandum clarifies that changes or extensions are appropriate 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. When considering a change of status and/or multiple extensions for the cohabitating partner or other household member, the finite nature of the stay, rather than the duration of the stay or number of extensions sought, is controlling with respect to nonimmigrant intent. For example, the visit should be considered temporary even if the status may be extended several times over several years in order to match an extended course of study undertaken by the principal alien. However, 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.”