Under internal guidance and in cooperation with visa policy of the U.S. State Department, USCIS is to uniformly and consistently process Form I-539 for changes to and extensions of B-2 status for cohabitating non-immigrant partners and other household members of principal non-immigrants.
In some circumstances, elderly parents, cohabitating non-immigrant partners, and other household members of principal non-immigrants may be ineligible for derivative status. For purposes of this memorandum, a “household member” of a principal non-immigrant is an alien who regularly resides in the same dwelling as the principal non-immigrant and with whom the principal non-immigrant 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 non-immigrant 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 non-immigrant visa holder who is in the United States in another status (H-1B, F-1, etc.). Department of State guidance provides for issuance of B-2 visas to these household members.
Consular officers are to annotate 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 USCIS for the duration of the principal alien’s non-immigrant status.
When evaluating an application for change to or extension of B-2 status based on cohabitation, the cohabitating partner’s relationship to the non-immigrant 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 non-immigrant lacks non-immigrant intent is a negative factor in the exercise of USCIS’ discretion.