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Applying for a B1/B2 (Visitor) Visa as the Spouse of a U.S. Expat

I’ve been asked several times today about how the spouse of a U.S. citizen expat can apply for a B1/B2 (visitor for business or pleasure) visa. The question typically goes something like this:

I am a U.S. citizen. I have lived in China for 5 years. My wife has been denied a U.S. tourist visa twice, once before and once after we married. We rent an apartment here, she has her own business, and I am employed as an engineer for Ford. We don’t want to apply for a green card because we plan to continue to live in China for the foreseeable future. We just want to visit the U.S. For the first visa application, I wanted to introduce my then fiancée to my parents. (My father has since passed away). For the second visa application, I wanted to bring my wife to Boston to attend my brother’s wedding. Is there anything you can do to help?

Here are just several points:

1. Your spouse probably received a boilerplate refusal notice stating that a consular officer must deny a B1/B2 visa application if not persuaded that the applicant intends to visit the U.S. temporarily, has strong ties to their home country such that the applicant will be compelled to return home after that temporary visit, and will comply with the terms of their visa. This is according to section 214(b) of the Immigration and Nationality Act.

2. Often, spouses of U.S. citizens are denied by consular officers trying to prevent “abuse” of B1/B2 visas by spouses seeking to move to the U.S. rather than just visit. That’s a common problem because it’s quicker and cheaper to get a B1/B2 visa than to get a green card.

3. So to prove that the foreign spouse is not moving to the U.S., the citizen should also prove his or her strong ties abroad, such as proving employment, home ownership or lease, assets, and/or social ties abroad. These ties are evidence that the foreign spouse is not likely to move to the U.S.  Proving strong ties can sometimes be difficult. For example, if the citizen spouse is not employed abroad, doesn’t have a long-term visa, or just moved abroad. Also be prepared to prove it’s a valid marriage by submitting a photo album, evidence of children born of the marriage, evidence of commingled finances, etc.

5. Beware that the 214(b) ground of denial can be for more than just failure to prove strong ties abroad. As mentioned above, the officer must be persuaded that the applicant will comply with the terms of the visa. For instance, a 214(b) denial may result from an interview where the consular officer found the applicant to lack credibility due to giving vague answers to the officer’s questions. Or from an interview where the officer learns the applicant violated the terms of a prior visa. Not all applicants–or even their lawyers–get this point. See 9 FAM 302.1-2(B)(6) (“More Than Just Ties”).

6. The consular officer won’t be moved by the importance or urgency of your U.S. travel. To qualify for a B1/B2 visa, you need a legitimate reason for travel, such as tourism or a family visit, medical reasons, participation in a social event, engaging in commercial transactions, consulting with business associates, etc. Visiting the citizen spouse’s dying father or attending a family wedding certainly are legitimate reasons. But no matter how important or urgent your need for travel, the officer will still refuse the application if section 214(b) applies.

7. The identity of U.S. citizen spouses is relevant to the extent that they are known to the consular post because that makes their assertions more credible. But there’s no free pass. I’ve seen B1/B2 visas denied to the spouses of the president of the country’s American Chamber of Commerce, high-ranking members of the U.S. military, and executives at multinationals.

8. It’s critical that the foreign spouse not misrepresent to immigration authorities the true purpose of a trip to the U.S., hide the marriage to a U.S. citizen, or misrepresent information about whether the green card process has begun. This could amount to fraud or misrepresentation, which is a legal ground to deport a noncitizen and permanently prohibit readmission. If a consular officer or a U.S. Customs and Border Protection Officer at an airport or other port of entry determines that an applicant has willfully engaged in fraud or misrepresentation, the applicant may be denied a visa or “summarily removed,” meaning that the applicant is deported from the U.S. with no hearing before a judge.

9. If you’ve been denied the B1/B2 visa already, you know that the interview conditions can be difficult. The applicant has the burden of proof, meaning the responsibility to prove their eligibility. Section 214(b) says that the officer must “presume” you are ineligible unless and until you prove otherwise. Yet the interview can be as short as 1-2 minutes, so you don’t have much time to explain your case. Nor do officers have time to review many documents. This week, one applicant complained that she handed a whole folder of documents to the officer but the officer refused to look at any of them. Officers have neither the time nor the inclination to review a mass of documents. Officers are trained to believe that any document can be forged and that how the applicant handles the interview is more important than any documents.

10. Here are some of the ways that our law firm prepares for the difficult interview conditions. (Of course, our strategy differs according to the specifics of each case). In the Form DS-160, Nonimmigrant Visa Application, we use the question about prior visa denials to explain why this time the application is approvable. We commonly have the U.S. citizen spouse submit an invitation letter that we help to draft. Most importantly, we help the applicant prepare for the interview so he or she can anticipate what questions are likely to be asked and can plan how to answer in a way that is truthful and helpful for the case.

11. Applying for a family-sponsored green card is not necessarily a cure after being denied a B1/B2 visa. While the foreign spouse need not prove any intent to reside in the U.S. in order to qualify for a green card, still the U.S. citizen spouse must ordinarily prove “domicile” in the U.S., meaning that not later than when the foreign spouse immigrates the citizen spouse must make the U.S. home most nights with the intent to remain so for the foreseeable future. There are two notable exceptions to the domicile requirement. First, it does not apply if the citizen spouse can file a Form I-864W instead of a Form I-864, Affidavit of Support, on the basis of Social Security credits earned by the citizen spouse during the marriage, by the foreign spouse, and by the foreign spouse’s parents. Second, it does not apply if the U.S. citizen spouse is employed abroad by one of the following types of entities: (a) the U.S. Government; (b) an American institution of research recognized as such by the Attorney General “an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof”; (c) a public international organization in which the United States participates by treaty or statute; or (d) is a minister, priest, or missionary. In fact, if the citizen spouse is working for such an entity, the foreign spouse may qualify to apply for expeditious naturalization under section 319(b) of the Act immediately after getting a green card.

12. If you would like to schedule a consultation with our firm after a B1/B2 visa denial, we typically want to know as much as possible about the prior application(s). If you can, provide a copy of the Form DS-160; the appointment letter; any invitation letter shown to the consular officer; and a list of the questions asked by the consular officer with your responses.

28 replies on “Applying for a B1/B2 (Visitor) Visa as the Spouse of a U.S. Expat”

Hello, I am a U.S. citizen working in China on a two-year renewable contract, I have been here a year and previously working in China and Ecuador since 2013. My wife (as of May 2018) was denied a b1/b2 visa in May when we wanted to visit my family over the summer. We met in Ecuador in January of 2017 and she moved to China to be with me in December of 2017. We are considering applying for a green card, but I do not wish to get in trouble because we have no plans to return to live in the United States for the foreseeable future. During her last attempt at a visa, she had a Chinese X1 long-term student visa that was expiring in August. Now she has a S1 family visa as a dependent. Both of our names are on our rental contract, but she does not work and her bank account has only temporary funds. I am wondering what would be the best process for my wife to be able to visit the United States. I understand that we would have to “establish domicile” in the US after receiving the visa – would ‘living’ with my mother, maintaining bank accounts, filing taxes, and returning to the United States twice a year (less than 6mo) count as establishing domicile? I’m very frustrated by this situation and your website is the first I have seen to cater to our situation. Thank you. Please advise us as to pricing and what course would be best in our situation.

Zachary:

As for the strategy option of applying again for a B1/B2 (visitor) visa, we like to look at the totality of the facts to help us make the decision. For example, we review the Form DS-160 (Nonimmigrant Visa Application), the supporting documents shown to the consular officer, the applicant’s immigration history, the Q&A (dialogue) between the officer and the applicant, the evidence of the validity of the marriage, the evidence of the applicant and U.S. citizen spouse’s ties to China, any U.S. tax returns for the applicant or U.S. citizen spouse, etc. With all that information, we can better analyze the odds of overcoming the prior B1/B2 visa denial.

As for the strategy option of applying for a spousal visa, you are right that normally the U.S. citizen petitioner must re-establish domicile in the U.S. not later than when the foreign spouse enters with the immigrant visa. “Domicile” in the U.S. means that the that your actual domicile (i.e., the place where you sleep most nights) must actually be in the U.S., so just having certain ties to the U.S. like a bank account and filing taxes is not enough. There are some exceptions to the domicile requirement, such as if the U.S. citizen is working abroad for a U.S. company or if a Form I-864W can be filed instead of a Form I-864. For more on that, see Affidavit of Support Help Center.

If you would like to explore these and other options in more detail, it would be a pleasure. Please see here to schedule a consultation: Consultation.

I am a native born US citizen. My husband and I reside in Malaysia and will be expecting our first child in December. I will be traveling back to the US to give birth and want to invite my husband to this memorable moment for us. We are most interested in the B2 visa process. We have never filed for any type of immigration or non-immigrant visa for my husband in the past. What would be the chances of being approved?

Hannah: It would certainly be a legitimate B2 activity for your husband to accompany you to the U.S. when you give birth. Your chances of being approved turn on factors listed in paragraphs 4 and 5 above, as well as your preparation for the interview as described in paragraph 10.

I am getting married in Malaysia in a few weeks, and my faience will be keeping her last name. She has a valid B-2 visa, does she need to reapply after the wedding because she is married a US citizen, or can she legitimately continue to use the same visa?

Thank you for this comment! I have been scouring the internet for similar information. I am a US citizen, and my husband is Malaysian. He had a B-2 visa before we married, and it is still valid. We have been wondering if he needs to get a different type of visa now that we are married. Since we have no intention of moving to the US (only visiting family a few weeks at a time), it sounds like he is okay to keep the B-2 visa.

Hello. I’m a US citizen by birth but have been living and working in the Philippines and have dual citizenship. I’ve been married to a Filipino citizen for a year. I planned to bring her to the US for a vacation. But she was denied a tourist visa. The officer asked what her work is- she is doctor currently affiliated in several hospitals and has a clinic. She was asked for her travel history–she is a frequent traveller and went to Canada, Dubai, Japan, Korea, Singapore and other Asian countries. The consul looked at her canadian visa and was told she was there only for 10 days for vacation and to visit her relatives. She was asked what my work is and said i worked for a family-owned bakery. (My wife did not mention that i have a restaurant and a poultry farm.) Now, we are confused if she should apply again for a tourist visa or apply for a spouse visa. But she dont intend to migrate, and I cant petition her because I dont pay U.S. taxes. Thank you.

Noel: I suggest that you speak with an immigration lawyer to carefully evaluate the potential strategy and odds of success for another B visa application. As discussed in the article, eligibility will turn in part on the strength of your ties to the Philippines and credibility that you do not intend to move with her to the U.S. Beware that some consular officers will judge the strength of your Philippines ties by reference to what employment/business ties you list in your U.S. taxes, and some officers will judge your credibility that you intend to comply with immigration laws by reference to whether you comply with tax laws.

Hello Gary,
I have married to a Chinese citizen, and we are currently coming up on our two-year wedding anniversary. We plan to stay in China for the foreseeable future but would like to visit the US. My wife was denied a B visa before we were married, but hasn’t tried since. We have been advised by a local agent that a person married to a US citizen cannot apply for a B visa. Is that true?

My girlfriend (a Brazilian national) and I have been dating for about a year and a half and recently got engaged. We’re currently living in Lisbon (and have been for 7 months, with an apartment lease and everything) and are in the process of obtaining permanent residence in Portugal. She has been denied a tourist visa twice while we were living in Brazil. We’d like to try again to get her a tourist visa so that she can meet my family. My sister in law has been diagnosed with terminal cancer and I really want my fiance to meet her. Do we even have a chance of being approved? We’re quite scarred by our first two experiences and really don’t like the idea of trying again… even though we’d be married… and even though we’re trying the process in Portugal (which carries less of a racial stigma than Brazil). Any help?

In Portugal, we are here on a tourist visa but have extended with SEF (with the help of our Portuguese lawyers) to buy us time to apply for the residence permit. We’ve submitted our permanent residence applications and are waiting on a time slot to speak to SEF about our applications. Also, I have received my social security number, but my fiance is still waiting.

I’m not entirely sure if our visa allows us to work, but I’m fairly certain it does. I work as a freelance software developer. Also, I’ve set up a company, where my fiancé works doing pet sitting and dog walking and I do the accounting. But the vast majority of our income (currently) is from my software development, until she gets more clients.

If you think we have a shot at a tourist visa application once we’re given our permanent residence cards, I’d love to speak to you about this further. We have lots of questions!

Patrick: If your fiancé applies for a B1/B2 visa at the U.S. Embassy in Lisbon, one of the officer’s key jobs would be to determine whether your fiancé has nonimmigrant intent, meaning that she intends to return to live abroad after visiting the U.S. If your fiancé argues that her plan is to return to live in Brazil, then the officer would probably not issue that visa on the grounds that the officer sitting in Lisbon has no way to understand or verify her ties to Brazil. In contrast, if your fiancé argues that she intends to return to live in Portugal, the officer will try to understand you and your fiancé’s ties to Portugal. If you and your fiancé currently have tourist visas (not yet permanent residence), the officer may not consider that a strong tie. Similarly, unless you both can prove you have authorization to work in Portugal, the officer may consider your ties to Portugal to be weak. Finally, as you are a freelance software developer, then to show your strong ties to Portugal you’ll want to show compliance with local employment and tax laws. In sum, you and your fiancé are new in Portugal, making it difficult to prove strong ties there. If you want to try again to apply for the B1/B2 visa, you may want to schedule a consultation with our firm strategize about how to maximize your odds of success.

I am a U.S citizen expat in Morocco and my Moroccan spouse got her tourist visa denied back in November 2018. The officer was pretty nasty in terms of questions asked, are you pregnant? And she was not at that time. Do you know that you cannot give birth in America?… This was a frustrating outcome as we have no intent of going back to the U.S for the time being. In October 2019 our baby was born and he just got his U.S passport. I would like to travel with my wife and baby this coming summer to introduce them to my friends and family. Would re-applying for a tourist visa for my wife again be risky? This is an awkward situation as I can’t apply for a green card for her since we have no intent of moving to the U.S.

OBY: Sorry to hear about the visa denial. Now that your wife ahs given birth, the officer will no longer be concerned your wife is going to the U.S. to deliver the baby. But now the officer may be concerned your family is trying to move to the U.S. with the B (visitor) visa. I know nothing of the strength of you and your wife’s ties to Morocco, but if they are decent, you may be well-served to reapply.

I am a 52-year-old dual U.S. and Jordanian citizen. I’ve lived in Jordan for 11 years. I have 4 U.S. citizen children here from a prior marriage. I work here and own a home here. I don’t have a home in the U.S.

I’ve remarried. My new wife is also working and in graduate school in Jordan. Is it an option for her to apply for a B1/B2 visa to visit the U.S.?

I am a native-born American expat and will be moving back to the States temporarily this year. My German fiancé plans to take a six-month sabbatical to spend time with me and get married in the US. Our original plan was for him to apply for a B1/B2 visa since he’s a civil servant in Germany and has no intention of immigrating to the US. However, given the current travel bans due to the virus, would it be easier for us to marry first so that he’ll be able to spend his sabbatical in the States? If so, would that require me to apply for a spousal visa?

Hi I am Filipina,married to a US citizen here in the Philippines. My US spouse wants me apply a tourist visa instead of spousal Visa because the reasons that he still doesn’t have a permanent residence there and spousal visa takes a long time before it can be approve. Can I visit him on tourist visa?

I am a US citizen for naturalization I am recently married with my girlfriend for the last
twenty years, We have a son 8 years old US citizen, I am State employee
for twenty two years. my wife would like apply for a visa B to visit me
with my son at least twice a year until I get my State retirement in three
years, Our intention when this happens is to live in our country. I forgot to mention my wife has her own business she is clothing designer.

Is there any way that a pregnant foreign (Chinese) spouse could enter the US, even temporarily, if her Green Card is still processing?

March 2020 we filed the I-130 for initiating her US permanent resident visa, but we are stuck in the notorious ‘waiting period’ and just want her to meet our US family.

We even filed for a K-3 visa, but have not got any updates. Anyways, I’ve heard that the K-3 visa’s purpose is usually never even fulfilled.

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