Recently, Customs and Border Protection (CBP) provided guidance on the period of time for which a nonimmigrant alien domestic partner may be admitted to the United States in visitor status when presenting a valid B-2 visa. This guidance does not apply to a visitor applying for admission under the Visa Waiver Program, which limits admission to a period of 90 days.
The Department of State (DOS) Visitor Visa Policy is to authorize issuance of a B-2 visitor visa to the unmarried, cohabitating partner of a nonimmigrant alien coming temporarily to the U.S. for work or studies. The DOS amended the Foreign Affairs Manual (FAM) in 2001 to formalize this long-standing policy. This policy extends to virtually any alien who is a member of the household of another alien in long-term nonimmigrant status but is not eligible for a derivative visa as a spouse or a child. In addition, even if a spouse or a child qualifies for a derivative visa, such as an L-2, H-4, etc., they may instead apply for a B2 visa. The spouse or child does not need to demonstrate that it is impossible to apply for a derivative visa, as it is simply inconvenient to do so.
Within the CBP Inspector’s Field Manual, there is a list of situations that support the use of a B-2 visitor category visa. One such item on the list is dependent domestic partners for whom the B-2 visitor category is appropriate. A nonimmigrant alien presenting a valid B-2 visa when applying for admission should be admitted for no less than six months, provided e or she is otherwise admissible and has a passport valid for the required period of time. A visitor accompanying another alien in long-term nonimmigrant status, however, may desire a longer period of admission. An alien presenting a valid B-2 visa may be admitted for up to one year.
The eligibility for visitor status requires an alien to be seeking admission to the U.S. for a temporary period of time. The length of the intended stay does not, per se, disqualify an individual for visitor status. The FAM explains that:
“The period of time projected for the B visa visit must be consistent with the stated purpose of the trip…The fact that the period of stay in a given case may exceed six months or a year is not in itself controlling, provided…that the intended stay actually has a time limitation an is not indefinite in nature…the temporariness requirement would be met in a case where the cohabitating partner will accompany, and depart with, the ‘principal’ alien on [for example], a two-year work assignment or a four-year degree program.”
The DOS instructs its consular officers to advise nonimmigrant aliens issued a B-2 visa who are planning to stay in the United States for more than six months to ask for a one year stay upon applying for admission. Upon arriving at a port of entry, a B-2 visitor should specifically ask for a one year period of stay. Domestic partners and others who are not eligible for nonimmigrant dependent visas should be prepared to demonstrate their relationship to the principal alien. There is no definitive list of prescribed documents to conclusively prove eligibility for admission in B-2 status as a domestic partner or other regular member of a household, but examples of evidence of cohabitation which may be sufficient can include a joint bank account statement shared lease or mortgage obligations, common driver’s license addresses insurance documents, and, if applicable a letter from the principal alien’s employer verifying the temporary nature of the assignment.
Based on these guidelines, same sex partners from other countries can seek to stay in the U.S. under B-2 status for up to one year. This bodes well for couples who do not wish to have to be parted for any significant period of time. Until the Defense of Marriage Act is repealed, immigration reform regarding same sex couples cannot allow same sex couples to petition for their spouses. In the meantime, the B-2 visa can give same sex couples the opportunity to stay together for a year while in the U.S. These guidelines are good to keep in mind for when a domestic partner should come to the U.S. and seek the maximum length of stay under that status.