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Discussion Starter #1
Hi there.

Myself (UK) and my wife (Germany) are currently both on H1B working Visa's. After giving birth a few months ago, my wife is not going to return to work, hence she'll need to give up her H1B status very soon.

In her passport she also has an existing B2 VISA, which is valid for another 6 years. HOWEVER, her B2 Visa is linked to my previous J1 Visa (which expired two years ago, at which point I switched to an H1B).

Does anyone have any experience/knowledge of the risk of her switching back to using that B2, even if I no longer have that J1? We know that the other option is apply for a new H4 for her, but I'd rather not go through that process if I can avoid it.

Any thoughts much appreciated.


Thanks,
S
 

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Discussion Starter #3
How is her B-2 "linked"?

You are aware the B-2 will require her to stay outside North America more than half the time, right?
On her visa it says 'accompanying J1 partner'.

I wasn't aware of that, no. What qualifies as more than half the time though? 5 years out of 10?
 

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A B-2 visa holder is granted a maximum (and note the word maximum) stay permission of 6 months per visit. So it's up to 6 months in, more than 6 months out, loop, repeat (hopefully, not guaranteed).
 

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Discussion Starter #5
Interesting. We were never told that by the embassy when she first got the visa and never at customs either. Is that 100% fact?

Any thoughts on the fact that it's 'linked' to my expired visa?


S
 

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B-2 CLASSIFICATION FOR COHABITATING PARTNERS

1. SUMMARY. Posts are reminded that B-2 classification is appropriate for cohabitating partners of long term non-immigrants, provided the alien is able to overcome INA 214(b). The FAM is being revised to expressly incorporate this long-standing interpretation. The text of the revised FAM note is contained at the end of this cable. END SUMMARY

2. Posts frequently encounter cases involving long term non-immigrants in various categories (A/G/NATO, F/J/M, E/H/I/L etc.) who have a cohabitating partner who wishes to accompany the “principal” alien to the U.S. As explained in 9 FAM 40.1 N1.2, unless the relationship Is recognized under law as being fully equivalent in all respects to a traditional legal marriage and grants the parties all the same rights and duties as a traditional marriage, the cohabiting partner cannot qualify for derivative status. However, such aliens may be classified as B-2 visitors, provided they are otherwise qualified for B classification. This is true for both opposite and same-sex partners.
 

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The B-2, as Davis's post explains, is for "visitors" (including "cohabitating" unmarried ones). A "visitor" is not a resident, so a visitor has to act like not a resident. Physical presence half or more of the time, particularly on a sustained basis, can (and usually is) interpreted as inconsistent with visitation.

It's up to CBP upon each entry attempt. I don't think the J-1 "linkage" is an actual linkage, but that's another risk factor.

Surely getting the H-4 is an adjustment of status within the U.S., isn't it?
 

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Discussion Starter #8
Thanks Davis and BBCwatcher. Much appreciated.

I think you're right and an H4 is an internal change of status, so should be relatively easy to do. Was just looking for the easiest way through.
 
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