Nonimmigrant
Visa (Family-Based)
General
A foreign national can apply for a derivative nonimmigrant visa if he/she is the spouse or child of a nonimmigrant visa holder (see below for the use of the B-2 nonimmigrant visa for "cohabitating partners").
Other Sites:8For family members of United States Citizens, please see U.S. Citizen's Spouse: Immigrant Visa "Green Card," including the "K" visa categories.
8For family members of Legal Permanent Residents, please see Immigrant Visa "Green Card".
As a spouse or child of a nonimmigrant visa holder, a foreign national can normally obtain a "derivative" visa to enter the United States to be with the principle visa holder. In general, he/she is allowed to stay in the United States for the duration of the principle principle visa holder's duration of stay.Family
If the foreign national spouse/child is in the United States, he/she may be able to "change status" (Form I-539 and file with the US CIS Regional Service Center).
If not, the foreign national can apply directly at the U.S. Consulate/Embassy (DS-156 and other supplements as necessary) and file with the U.S. Consulate/Embassy.
The following general documents are necessary (whether "changing status" or applying directly):1. Principle nonimmigrant visa holder's visa, approval letter, documentation (maintaining the particular visa "status").Employment Authorization
2. Documents to establish the foreign national's relationship to the principle nonimmigrant visa holder.
3. Documents to show financial support in the United States.In general, family members do not receive work authorization as a derivative, except for those marked with an asterisk (*).
Principle Visas (Principle Visa Holder) Derivative Visas (Family Member) B-1, B-2, D-1 B-2 F-1 F-2 (Note: After "SEVIS" was implemented, if full-time student, must obtain F-1 visa "status.") M-1 M-2 E-1 E-1 E-2 E-2* H-1A/B, H2A/B, or H-3 H-4 I I J-1 J-2 L-1A/B L-2* O-1/O-2 O-3 P-1, P-2, P-3 P-4 E, H, or L B-2 as a "non-spouse partner" (gender does not matter), if you are a "partner" of a E, H, or L visa holder. (See below.)
B-1: For individuals visiting temporary for "business", i.e., engaging in commercial transactions such as attending conferences, business meetings, executing contracts, undertaking negotiations. Can not be "gainfully employed" in the U.S.; payment/salary to B-1 nonimmigrant should be made abroad. The B-1 or B-2 visa holders are normally allowed into the U.S. for a 6-month period.
Note:
Must have financial support and intent to depart. Additionally, some port-of-entry offices (Western Region) may disqualify admission of a B-1 nonimmigrant (or corresponding Visa Waiver Program nonimmigrant [see below]) if the foreign national is entering the United States and will be: a) compensated from a U.S. source (beyond reimbursement for expenses or per diem), or b) even if uncompensated, perform services for which a U.S. worker would have to be hired or are the services inherently part of the U.S. labor market, or c) services primarily benefiting the U.S. entity as local work or hire as contrasted with benefiting the foreign national him/herself or the foreign employer in furtherance of international trade).
`PDF4Download: US CIS Western Regional Memorandum "Admission of B-1/WB Visitors" (05/02) (US CIS/DHS)B-2: For individuals visiting temporary for "pleasure", i.e., engaging in tourism, visiting relatives, attending conventions, language students (less than 18 hours a week). The B-1 or B-2 visa holders are normally allowed into the U.S. for a 6-month period. Spouses and dependents of a nonimmigrant visa, such as H-1B, are eligible for an H-4. However, "cohabitating partners", who are not spouses or dependents, can apply for the B-2 visa.
Note:
Must have financial support and intent to depart.
Cohabitating Partners:
The Department of State (DOS) has issued guidance that emphasize that "cohabitating partners" may apply for the B-2 nonimmigrant visa. "Cohabitating Partner" means individuals who are not spouses or dependents, but who have lived/resided on a long-term basis, with the principle visa holder. The DOS states that this is true for "both opposite and same-sex partners." (Note: The individual, however, must overcome INA 214(b).)Medical Treatment:
The VSC (US CIS) indicates that while there are is maximum duration of status for B-2 holders who are receiving medical treatment , or accompanying an individual who is receiving medical treatment. However, any period over one year will be subject to scrutiny, because the US CIS may make a determination that the B-2 visa holder may have immigrant intent (intent to reside permanently in the U.S., which is contrary to the "temporary/nonimmigrant" nature of the B-2 visa). With respect to medical treatment related B-2 visas, the duration of status can be longer than a year if sufficient evidence of the need for medical treatment and ability to financially fund the treatment are presented. For Medical Treatment B-2s, it is important to prove that there is no U.S. government financing for medical expenses (however, the patient can receive donations from a local church or other non-profit organization that is offering support).VWP (Visa Waiver Program):
An individuals does not need a B-1 or B-2 visa if they can use the VWP (Visa Waiver Program) for travel to the United States for less than 3 months. Those who require the B-2 visa because VWP is unavailable, or because the duration is more than 3 months, normally are given a 6-month period of B-1/B-2 stay in the United States. Once in the U.S., extensions are possible, but too many may be considered as not "temporary." However, the Department of State has issued guidance stating that: "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."
(See Visa Waiver Program (VWP).)Changes to B-1/B-2 Visas (Affecting Intended F & M Students):
On April 12, 2002, the US CIS published new rules imposing new restrictions on B-1/B-2 visitors and those who seek to obtain student visas (after entering the U.S. using a B-1/B-2 visa).Interim Rule: Prohibition on Attending School Prior to Change of Status from B-1/B-2 to F-1 or M-1
Before the interim rule, visitors admitted under B-1/B-2 visas were allowed to begin attending school before the US CIS approved their request to change status to F-1 or M-1 students. The interim rule does not eliminate the ability of B-1/B-2 visitors to change their status to F-1 or M-1 students. However, it prohibits B-1/B-2 visitors from attending school without first obtaining US CIS approval. The US CIS is instituting this change as a direct result of the terrorist attacks of September 11.Proposed Rule: New Requirements for Change of Status from B-1/B-2 to F-1 or M-1
In addition to the interim rule, the US CIS issued a proposed rule that requires B-1/B-2 visitors to notify the US CIS of their intent to attend school in the U.S. when they initially enter the US as B-1/B-2 visitors. Furthermore, if they have already received any I-20 forms from schools, they must produce the forms to the inspecting officers at the time of admission. Inspecting officers will make the proper notification on I-94 Entry/Departure card that the B-1/B-2 visitors are prospective students.
(See F-1 Student Visa.)
(See M-1 Student Visa.)Proposed Rule: Minimum Admission Period Eliminated
Currently, visitors admitted under B-1/B-2 visas are routinely granted a 6-month period of admission, regardless of the time they actually intend to stay in the United States. The proposed rule will eliminate the automatic 6-month admission period for B-2 visitors, and only provide a period of time that is necessary as explained by the visitor. If B-2 visitors cannot explain to the satisfaction of the inspecting officers, they will be granted a 30-day period of admission only. If B-2 visitors can establish the need for a period of stay longer than 30 days, an appropriate period of admission will be granted up to 6 months.Proposed Rule: Maximum Period of Admission Reduced
The US CIS is also proposing to reduce the maximum period of admission for B-1/B-2 visitors from 1 year to 6 months.Proposed Rule: Changes to Standards for Extension of Stay
The maximum period for each extension of stay application will remain 6 months for B-1/B-2 visitors. However, the proposed rule will limit the conditions under which B-1/B-2 visitors can request an extension of stay. B-1/B-2 visitors will be eligible for an extension of stay only in cases that have resulted from unexpected or compelling humanitarian reasons. In addition, they must prove that they have adequate financial resources to support their stay in the U.S. and that they are maintaining a residency abroad which they have no intention of abandoning.
This is NOT a visa (no change of status, no extension of stay allowed), but is issued for those individuals with B-1 or B-2 intent, and who wishes to enter the U.S. for less than three (3) months. You must be a national of a qualifying country (individuals who are ineligible for VWP, or those who require US stays of more than 3 months, may seek the B-1/B-2).
Note:
Must have return-ticket out of the U.S. There is no need to apply for visa "sticker" issuance from the US CIS, or visa "sticker" from the U.S. Consulate/Embassy.
8September 25, 20038 MRP (machine-readable passport) Requirement Postponed for 21 Countries
The Dept. of State (with the Dept. of Homeland Security) has officially announced the postponement of the MRP requirement (see below) for "visa waiver (VWP)" travelers for nationals of 21 countries: Australia, Austria, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Spain, Sweden, Switzerland, and the United Kingdom.
Nationals of other countries wishing to visit the U.S. must either have a MRP for "visa waiver (VWP)" entry (if qualifying country), or a visa.8June 16, 20038 Entry & Departure: Machine-Readable Passport Required for Visa Waiver Program (VWP)
Under the Visa Waiver Program (VWP), the citizens of certain countries may visit the U.S. for business or pleasure for up to 90 days without a visa "sticker." Effective October 01, 2003, all travelers who wish to travel to the U.S. under the Visa Waiver Program (VWP) must possess a machine-readable passport (MRP) issued by their government and present it at the U.S. port of entry. Those who do not possess such a passport must apply for a nonimmigrant visa (such as an B-1/2) at the U.S. Embassy/Consulate (Dept. of State) prior to traveling to the United States.
Visa Waiver Program (VWP) countries: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, the United Kingdom and Uruguay. (The list changes occasionally; please check the Department of State website for updated lists.)
Also: If you enter the U.S. under this program, you cannot extend your stay past 90 days except for very limited circumstances, and you cannot change to another nonimmigrant status while in the United States. In addition, you cannot adjust status unless an immigrant petition is based on an immediate relative relationship. Therefore, if you are a citizen of a qualified country but plan to stay past 90 days or to change your status in the U.S, you may want to consider obtaining a nonimmigrant visa such as B-1 or B-2.
Also: Citizens of Belgium who wish to travel to the U.S. under the Visa Waiver Program must possess a machine-readable passport issued by the Government of Belgium effective May 15, 2003. Otherwise, they are required to apply for a nonimmigrant visa prior to traveling to the United States.
Strategic Difference: B-1/B-2 and Visa Waiver Program
The B-1 or B-2 allows individuals to extend the stay in the U.S. (by filing an extension) or to change status (to an F-1, L-1, etc.). VWP holders, because it is not a visa, cannot file an extension nor change status. In the past, individuals seeking to attend school, but could not apply for an F-1 student visa, entered the U.S. on a B visa, first. Business people who wanted to start a business also entered the U.S. on a B visa to begin initial preparations.
The following sites provide information that is related to adjustment applications: bars to immigrant visa "green card" based on public charge, etc.; social security numbers (obtaining tax records, etc.); foreign national entry & departure tracking system; and database of foreign nationals used by the US CIS (prior arrest records, etc.).
i8Related Topic: Bar to Adjustment "Inadmissibility Grounds"
Even if a foreign national applicant substantively qualifies for a nonimmigrant or immigrant visa "green card," there are grounds of "inadmissibility" that may ultimately disqualify him/her from obtaining the status.i8Related Topic: Social Security Number -- SSA, SSN, ITIN (TIN) & I-9
i8Related Topic: Foreign National Entry & Departure Monitoring/Tracking System "US VISIT"
i8Related Topic: Database of Foreign Nationals
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