B-2 Eligibility for Domestic Partners & Elderly Parents
October 21, 2009
Generally, when an individual is granted a longer-term non-immigrant visa (such as an H-1B Specialty Occupation Visa, F-1 Student Visa, E-1/E-2 Treaty Trader/Investor Visa, or L Intracompany Transferree Visa), their spouse and unmarried minor children are granted a visa as their dependents in order to accompany them to the United States. The restriction to lawfully wedded spouses and unmarried minor children excludes individuals who are merely long-term cohabitating partners, as well as other family members like elderly parents.
The Department of State, which oversees the issuance of visas at United States Embassies, recognize that individuals who do not qualify for dependent status are indeed qualified for a longer duration B-2 tourist visa to accompany their cohabitating partner or child to the United States for the duration their non-immigrant visa. The definition of cohabitating partner includes both same-gender and opposite gender partners.
Under the regulations (9 FAM 41.31 N 14.4), “[t]he B-2 classification is appropriate for aliens who are members of the household of another alien in long-term nonimmigrant status, but who are not eligible for derivative status under that alien’s visa classification. Such aliens may include cohabitating partners or elderly parents of temporary workers, students, and diplomats posted to the U.S., etc....” The regulations clearly confirm that a “significant other” whose intent is to accompany a temporary worker or student to the United States are clearly eligible for a B-2 tourist visa for pleasure.
Naturally, the individual must continue to be able to prove that he/she has the intention of returning back to his/her native country upon the conclusion of the partner’s work or study. Further, as a B-2 tourist, the individual must prove that he/she has no intention of working while in the United States.
In considering an application for a B-2 visa, consular officers are to factor in the applicant’s current circumstances and their prospects in their home country upon return, as well as the strength of their relationship with the “principal” alien and the “principal” alien’s own ties abroad. For example, an 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 the immigrant intent presumption. Conversely, a “partner” (boyfriend/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.
For individuals granted a B-2 tourist visa in order to accompany a “significant other” with a longer-term non-immigrant visa to the United States, applications to extend their B-2 status while in the United States will most likely have to be filed. When entering as a B-2 tourist accompanying a longer-term nonimmigrant, individuals may request at their initial admission to the United States authorization to remain for up to 1 year. Thereafter, they may request continual extensions in increments of up to 6 months for their length time provided to the principal nonimmigrant.
The opportunity provided by the B-2 tourist visa will hopefully facilitate non-legally married couples, including same gender couples, and elderly parents to accompany their loved one into the United States.
For further information, please schedule an appointment at Aquino & Aquino, A Professional Law Corporation, 625 Fair Oaks Avenue, Suite 101, South Pasadena, CA, 91030; (626) 799-3089.
Aquino & Aquino, A Professional Law Corporation, also handles family law, employment discrimination, unlawful termination, criminal defense, personal injury, wills, and living trusts.
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