Janinele

Hi,

I would very much appreciate if someone could shed some light on the following issue:


I (German) am a J1 visa holder and my boyfriend (UK) has a B2 visa (cohabitating partner) to stay here in the US. My visa is valid for 3 years in total and his for 10, though he only gets 6 months at a time on his I94. We have been here now for 15 months. After the first 6 months he went back to the UK then returned.

Close to the end of the 2nd 6 months he applied for an extension, and was denied because he failed to send in the correct supporting evidence (his mistake). As his I94 was now outdated he was given 30 days to leave, and he didn’t think that was long enough to file a motion to reconsider, so he went back to the UK for 2 weeks, then came back and applied for another I94.

This time around he was given a really hard time by the immigration officer who interviewed him. He had all his evidence with him (evidence of his house in the UK, evidence of my salary and a letter from me stating that I support him in the US, etc) but the immigration officer wouldn’t even allow him to open his bag. He told him that he would be allowed in this time, but it would be the last time, and he would have to stay out of the US for at least a year after this 6 months I94. This is obviously no good for us, as I have another 21 months here.

He said the only way to stay longer was for us to get married.

Ok, thanks for reading all that! Here’s my questions:

1. I thought that the cohabitating rule meant that he could stay here as long as I do, as long as he can show he has not abandoned his residence in the UK and has money to support him?
2. Is this officer just incorrect in his statements?
3. Or is it always at the discretion of the officer on the day?
4. What about if he applies for an extension again? Will the previous denial influence the decision this time?

We’re also thinking of getting married. If we do this:

1. Does he have to leave the country to convert his B2 into a J2? Or does he have to newly apply for a J2?
2. What is the timeline until he gets the J2 (in case he has to leave the US)?
3. Does it matter where we’re getting married? US or back home (Germany or UK)


Thanks very much, Janine

crg

1. I thought that the cohabitating rule meant that he could stay here as long as I do, as long as he can show he has not abandoned his residence in the UK and has money to support him?
Sounds good in theory, but practically speaking convincing an officer of that can be problematic at best and disastrous in the worst case. Frankly, they should create a new category for this because lumping cohabitating partners with other B-2 has caused a lot of confusion.

2. Is this officer just incorrect in his statements?
Yes, and no. The "stay out a year" is not binding. However the bf is lucky to have gotten in at all. Some interpretations of the law (section 222g of the INA) indicate that the denied extension and expiry of his I-94 made the visa void. Some ports of entry would have denied him.

3. Or is it always at the discretion of the officer on the day?
It's always at the discretion of the officer on the day. However, if the person is clearly inadmissible for some specific reason, then they can't just admit the person because they feel like it.

4. What about if he applies for an extension again? Will the previous denial influence the decision this time?
Influence.... that's tough to say. It may be a factor, but the negative factor could be overcome.

We’re also thinking of getting married. If we do this:

1. Does he have to leave the country to convert his B2 into a J2? Or does he have to newly apply for a J2?
No, but if you get married in the UK/Germany it's inappropriate to seek entry to the US with a B2 with the intention of changing status to a J2. Get the J2 before traveling.

2. What is the timeline until he gets the J2 (in case he has to leave the US)?
It's usually a straightforward process that takes as long as it takes to get an appointment. However, males from certain countries may have to go through additional security checks.

3. Does it matter where we’re getting married? US or back home (Germany or UK)
Yes. See above.

ian-mstm

Yes... and no. He can stay for up to 6 months at a time - which is usual for a B-2 visa. BUT, he is also not supposed to be living in the US which would be an inappropriate use of a "visitor" visa. The only way to overcome the dichotomy, is for him to remain outside the US at least as long as the duration for which he was admitted. IOW, 6 months in... 6 months out.


Well... life sucks - but that's the way it is. Almost everyone here has been separated at some point from their SO... so you're not going to get much sympathy. Many folks here would sell their soul to be allowed to remain 6 months with their SO.

Ian

crg

Believe it or not, the State Department expects the border officers to admit the cohabitating partner for an initial period of one year, and the partner to repeatedly submit extension requests for six months at a time up until the time that alien worker/student/exchange visitor is done with their presence in the US.

The problem is that the state department often doesn't write "partner of" on the visa, the border officers don't give them a year, and the participants don't do the extensions or do them improperly. Some people decide to travel briefly instead of submitting the extension requests.

It's a royal mess.

henryh

Speak for yourself. I am sympathetic, perhaps moreso because I have been separated from my SO for extended periods... I don't understand how much bitterness and jealousy there is on these forums.

Janinele

thanks for the replies so far.

what about the marriage route - if we're going to get married in Europe: He just has to schedule an interview at an embassy and apply for the J2? - right?

what is the timeline here - are there any hurdles or delays - or will it be a matter of days when he gets it and can then come to the US for as long as I have my visa?


again thanks very much for any help and suggestions, Janine

ian-mstm

I certainly wouldn't presume to speak for you... which is why I used the phrase "almost everyone". Only the Sith deal in absolutes... and I am certainly not a Sith.


While I am brutaly honest at times, I am neither bitter nor jealous... so I'm not sure how you reached that conclusion.

Ian

md95065

It's an understandable mistake - you are, after all, a self-described "sanctimonious prick" (albeit a "kind" one) and sanctimonious pricks are almost all (note that I said almost all, so this may very well not apply to you) bitter, twisted individuals wracked by jealousy ...

Janinele

sorry, if I ask again, but I'm still left with this question - any advice?

Folinskyinla

Hi:

I'm amused. The CBP guy let him in, no? That is the ONLY legally relevant thing the officer did.

Actually, I would be more worried about the continual validity of the actual B-2 visa. An "overstay" invalidates the visa and I can frame a rational argument in my head that staying after the denial of the extension invalidated the visa.

Eric S

Ian - I think you're not exactly right here. My understanding of the cohabiting B2 visa is that it does let cohabiting partner stay (live) in the US with the primary visa holder as long as the primary visa holder is there.

Admittedly, it's a strange beast. They should probably come up with some new of visa instead of a B2 to be used for this purpose.

It kind of sounds like the officer wasn't correct. But maybe your boyfriend's denial had something to do with it.

- Eric S.

Folinskyinla

Hi:

Pedantic Stuart would like to comment: the "visa" is issued by the consulate and all it is a prerequisite to getting on the airplane [or ship] in order to apply for admission to the United States at a port of entry [POE].

Once admitted to the US, the "visa" is essentially meaningless -- it is the terms of admission granted by CBP and otherwise modified by CIS [extension of status, change of status] that governs.

UK nationals normally get "visas" valid for 10 years in the B-2 category. At the POE, a B-2 is normally admitted for 6 months.

So, when criticizing "they," it is CBP inspectors that count. When trying to clear a 747 in 20 minutes, you really don't want to make a CBP officer think all that much or to be pushy.

crg

That's exactly what I was thinking. According to the State Department, the visa is toast per 222(g) when the extension is denied and the I-94 has expired. USCIS doesn't agree, and CBP deals with it differently based on who is working the border at the time.

Since it's the DOS's visa, they're probably right.

Eric S

Yes, absolutely. And I do understand the difference between visa and status.

But I'm curious. If DOS issues a B-2 cohabiting visa, does it look any different from a "regular" B-2 visa? And is CBP supposed to treat B-2 cohabiting visa holders any different from regular B-2 visa holders? Or do they just let them in for the standard 6 months and then it's up to the visa holder to continually file for extensions while they're here? If so, that kind of traps them here, doesn't it? Because if they leave and try to return on the B-2 visa, the POE officer is going to give them a hard time for "living" in the US on "visitor" visa.

Thanks.
- Eric S.

crg

This is from the CBP field manual:

(B) Determining eligibility. If otherwise admissible, admit the following as B-2:
(1) An alien coming for purposes of tourism or to make social visits to relatives or friends;
(2) An alien coming for health purposes;
50
CBP Inspector’s Field Manual
(3) An alien coming to participate in conventions, conferences, or convocations of fraternal, social or service organizations;
(4) An alien coming primarily for tourism who also incidentally will engage in a short course of study;
(5) An amateur coming to engage in an amateur entertainment or athletic activity, even if the incidental expenses associated with the visit are reimbursed;
(6) A dependent of an alien member of any branch of the U.S. Armed Forces temporarily assigned to duty in the United States;
(7) A dependent of a category “D” visa crewman who is coming to the U.S. solely for the purpose of accompanying the principal alien;
(8) An alien spouse or child, including an adopted alien child, of a U.S. citizen or resident alien, if the purpose of the visit is to accompany or follow to join the spouse or parent for a temporary visit;
(9) A dependent of a nonimmigrant who is not entitled to derivative status, such as in the case of an elderly parent of an E-1 alien, or a domestic partner (Revised by CBP 3-04);

etc etc etc....

The caveat is the " If otherwise admissible" part. The applicant may not have a foreign residence as required.