# Extended Stay in U.S. - Tourist Visa Only, Not Working



## ExpatPumpkin (May 30, 2010)

I have a U.S. immigration question. Here are the facts:

- I am a U.S. citizen and my work is based in the States. 
- My husband is a Mexican citizen with a valid tourist visa to the States. 
- We are currently living in the U.K. - his company transferred us here. 
- He would like to quit his job in the next few months and focus on starting a business in Mexico.
- When he quits his job in the U.K., we'd move to the States. 
- I would work in the States, and he would not.
- He REALLY would NOT work, and this will NOT create an economic hardship for us.
- We would frequently travel to Mexico (by plane) - every other month for about a week - but mostly be based in the States.
- After a year or so, we'd most likely move back to Mexico.

My question: What should he tell the immigration officials when asked why he's staying in the States for such an extended period of time?

Thanks in advance for your responses.


----------



## Fatbrit (May 8, 2008)

ExpatPumpkin said:


> I have a U.S. immigration question. Here are the facts:
> 
> - I am a U.S. citizen and my work is based in the States.
> - My husband is a Mexican citizen with a valid tourist visa to the States.
> ...


There's no "just hang about in the U.S." visa. The fact that he won't be working is largely immaterial.

One condition of tourist entry is that the entrant maintain a residence elsewhere.

Every entry to the U.S. increases the likelihood of issues developing. However, nobody has a crystal ball to predict exactly when these will hit the fan. Repeated trips will provide suspicion to CBP that the person is living in the U.S. rather than elsewhere. A general rule of thumb is to spend at least as long out as in.


----------



## ExpatPumpkin (May 30, 2010)

Fatbrit said:


> One condition of tourist entry is that the entrant maintain a residence elsewhere.


We actually do maintain a residence in Mexico. 

It's my understanding that the maximum tourist stay in the US is 6 months at a time. He'll be flying back to Mexico for a week at least every 2 months. 

So I guess my question is whether there's a limit on those stays during any period of time.

Thanks!


----------



## twostep (Apr 3, 2008)

ExpatPumpkin said:


> We actually do maintain a residence in Mexico.
> 
> It's my understanding that the maximum tourist stay in the US is 6 months at a time. He'll be flying back to Mexico for a week at least every 2 months.
> 
> ...


Read up a bit more on B2 and what is intended for. With his wife living and working in the US how will he show binding ties to Mexico which will keep him from having immigration intent? His actual entry and stay will be determined by the immigration officer at point of entry. Considering the current tensions US/Mexico be prepared for secondary questioning and potential consequences. 
What should he tell immigration officials? Hopefully the truth and that supported by lots of documentation.


----------



## ExpatPumpkin (May 30, 2010)

twostep said:


> With his wife living and working in the US how will he show binding ties to Mexico which will keep him from having immigration intent?


That's my point... How WILL he show binding ties to Mexico? His family lives there, we own a home there, and we live very comfortably there. He honestly has no immigration intent - if given a green card, his Mexican income/assets would be subjected to US taxes.

But we'd like to spend a long period of time in the States because it would be good for my business and we'll be completely remodeling our Mexican house. So we have to live somewhere else for awhile - might as well be in a location that's good for me since he won't be working.

Should he be traveling with financial statements, the title to our home, etc.?

Also, he already HAS the proper visa in his passport, so he won't be applying for one. He's just never stayed for longer than a month at a time.


----------



## Fatbrit (May 8, 2008)

ExpatPumpkin said:


> We actually do maintain a residence in Mexico.
> 
> It's my understanding that the maximum tourist stay in the US is 6 months at a time. He'll be flying back to Mexico for a week at least every 2 months.
> 
> ...


It's pretty well at the discretion of the CBP officer you encounter on the day, or more precisely his or her supervisor. He has no right of entry, and as the pattern you described builds up, the chances of being refused entry increase greatly. Nobody can predict exactly when the end will come, just that it will certainly eventually come with a pattern like this. Unless you really irritate them, you usually get one warning before the drawbridge is pulled up.

Also note that if he exceeds 180 days in the US, he is obligated to file a US tax return.


----------



## ExpatPumpkin (May 30, 2010)

I did some additional research, and it appears that a B2 can be used to "hang around" with a partner in the States:

_4. Accompanying one's "significant other" who is temporarily working or studying in the U.S. would be considered travel for pleasure, within the meaning of INA 101(a)(15)(B). The primary purpose of travel is controlling. Thus, if the primary purpose of the partner or family member is to accompany the principal alien, then the B-2 visa classification is appropriate. Therefore, the activity is consistent with B-2 status, as long as the accompanying partner does not intend to work. (If the latter, the accompanying partner will need a temporary work visa which permits such planned activity.)

-----------------------------------------

EXTENDED STAYS CAN QUALIFY AS "TEMPORARY"

-----------------------------------------

5. The fact that the cohabitating partner may be living in the U.S. for an extended period is not a bar to B-2 classification. Cases of this type are governed by 9 FAM 41.31 N2.4. That Note provides as follows:

"The period of time projected for the [B visa] visit must be consistent with the stated purpose of the trip. The applicant must establish, with reasonable certainty, that departure from the United States will take place upon completion of the temporary visit. Although temporary is not specifically defined by either statute or regulation, it generally signifies a limited period of stay. 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."_

It goes on the say that the partner can be a spouse:

_B-2 classification may also be accorded to a spouse or child who qualifies for derivative status (other than derivative A or G status) but for whom it may be inconvenient or impossible to apply for the proper H-4, L-2, F-2 or other derivative visa._

Source: http://travel.state.gov/visa/laws/telegrams/telegrams_1414.html

The only possible issue I see is that I am not a _principal alien_, but a _principal US citizen_... Thoughts?


----------



## Fatbrit (May 8, 2008)

ExpatPumpkin said:


> I did some additional research, and it appears that a B2 can be used to "hang around" with a partner in the States:
> 
> _4. Accompanying one's "significant other" who is temporarily working or studying in the U.S. would be considered travel for pleasure, within the meaning of INA 101(a)(15)(B). The primary purpose of travel is controlling. Thus, if the primary purpose of the partner or family member is to accompany the principal alien, then the B-2 visa classification is appropriate. Therefore, the activity is consistent with B-2 status, as long as the accompanying partner does not intend to work. (If the latter, the accompanying partner will need a temporary work visa which permits such planned activity.)
> 
> ...



This concession requires not only that the principal is an alien , but that the principal is an alien on a non-immigrant visa and is not married to the beneficiary. Not you, I'm afraid, as you fail on all three counts.

As a historical note, this concession was brought in during the Bush 43 era, and it was the first time anyone with a gay marriage had been able to secure an immigration benefit through it. Go figure!


----------



## ExpatPumpkin (May 30, 2010)

Thank you, Fatbrit. The text says that it may also apply to a spouse (so my husband should be covered), but I am clearly not a principal alien. As a citizen, however, don't I have at least the same rights as an alien to have my spouse accompany me?

What are our other alternatives? We don't wish to settle in the States, so none of those visa avenues are appropriate. What's left for us? I just want the same treatment as an alien


----------



## Fatbrit (May 8, 2008)

ExpatPumpkin said:


> Thank you, Fatbrit. The text says that it may also apply to a spouse (so my husband should be covered), but I am clearly not a principal alien. As a citizen, however, don't I have at least the same rights as an alien to have my spouse accompany me?
> 
> What are our other alternatives? We don't wish to settle in the States, so none of those visa avenues are appropriate. What's left for us? I just want the same treatment as an alien


None, really.

If you're not going to bring over here as a spouse, he's left with stuff like being a student, au pair, buying a business, or being sponsored by an employer. But none of these really work with three weeks in and one week out.

The easiest solution might be to make it so he spends more time outside the US than in during his B2 stays, and cut down the frequency of visits, e.g. 2 months out and 1 month in. That would greatly increase his chances of not being refused entry.

The best solution is for you both to share the same citizenships. You need to plan for him to be resident in the US for around 3.5 years for him to naturalise.


----------



## ExpatPumpkin (May 30, 2010)

Thanks for your advice, Fatbrit. Unfortunately, sharing my citizenship with him isn't an option. We're simply not planning on settling in the States and won't be spending 3.5 years there. Also, giving him citizenship opens him up to unnecessary tax consequences. 

Regarding my citizenship, I don't plan on "pledging Mexican" in the future. I'll be eligible for permanent residency after we move back, and that's good enough for me.

I think I'll speak with an immigration attorney. We'll always maintain a residence in the States, and it seems ridiculous that individuals of means who are married to US citizens can't come and go as they please (when accompanying their citizen spouse).

Thanks again for your insight!


----------



## sheffdave2002 (Dec 7, 2011)

ExpatPumpkin said:


> Thanks for your advice, Fatbrit. Unfortunately, sharing my citizenship with him isn't an option. We're simply not planning on settling in the States and won't be spending 3.5 years there. Also, giving him citizenship opens him up to unnecessary tax consequences.
> 
> Regarding my citizenship, I don't plan on "pledging Mexican" in the future. I'll be eligible for permanent residency after we move back, and that's good enough for me.
> 
> ...


Hi, reading your thread I have a very similar situation coming up next year, with my US partner going to study in the US for 2 years and I a UK citizen wanting to accompany her, at least for part of the time - did you manage to resolve it satisfactorily and can you give any advice?


----------



## twostep (Apr 3, 2008)

sheffdave2002 said:


> Hi, reading your thread I have a very similar situation coming up next year, with my US partner going to study in the US for 2 years and I a UK citizen wanting to accompany her, at least for part of the time - did you manage to resolve it satisfactorily and can you give any advice?


Cohabitating partner B2 - no work permit.


----------



## mrtravelman (Jan 9, 2013)

*asking a lawyer*

Do you know that you can have free legal advice about USA immigration?


----------



## twostep (Apr 3, 2008)

Peter111 said:


> Hi i'm studying your line I have a very identical scenario arriving up next season with my US associate going to research in the US for 2 decades and i am UK resident seeking to go along with her at least for aspect of enough time did you handle to take care of it satisfactorily and can you provide any advice?


If you write in sentences and provide clear information your chances for answers increase.
Your girl friend is a US citizen returning to the US? You want to accompany her to the US? Did I get the scenario?


----------

