Visas for fiance(e)s of non-immigrants?

Dear Attorney Gurfinkel,

I am in the US, working for an employer under my H-1B visa. I left behind my long-time girlfriend in the Philippines, whom I hope to marry one day. However, because of my job, I am not able to go back to the Philippines in order to marry her, so that she would be able to come to the US as my dependent. Is there anything that we can do?

Very truly yours,

NS

Dear NS,

As everyone knows, there is a fiancé(e) visa for people coming to the US, intending to marry a US citizen (K-1). However, believe it or not, a visitor’s visa may be available for fiancé(e)s of non-immigrants!

According to the Foreign Affairs Manual (FAM) which is the “Bible” of the Embassy, a fiancé(e) of certain non-immigrants can apply for a B-2 visitor’s visa in order to come to the US and marry that non-immigrant. Thereafter, they can apply for “change of status” as a dependent. In other words, if a person is in the US in certain non-immigrant categories, such as F (student), H (non-immigrant worker), L (intra-company transferee), O (alien of extraordinary ability), etc., and they have a boyfriend or a girlfriend (fiancé) in the Philippines whom they want to marry, their fiancé could apply for a visitor visa. 

According to the FAM, these fiancées (who must establish a residence abroad to which they intend to return, and who are otherwise qualified to receive visa), are eligible for B-2 visas if “the purpose of the visit is to marry a non-immigrant alien in the US in valid non-immigrant . . . status”. If the visitor visa is approved, the Consul is to also advise the person that once married, he or she could, “request a change in non-immigrant status to that of the alien spouse”, meaning that after marrying the non-immigrant fiancé in the US, he or she could file for change of status from visitor (B-2) to the appropriate status as a dependent of the non-immigrant spouse, such as F-2, H-4, etc.

Therefore, if your girlfriend is otherwise eligible for a visa, she could possibly apply for a B-2 visa, to enable her to come to America to marry you and then change to the proper dependent status, which, in your case, would be H-4. However, I have to caution, that YOU (as the principal applicant) must be in valid non-immigrant status, and in full compliance with your visa. For example, if you are in H-1B visa status, but are no longer working for the petitioning employer, or are “out of status”, then your fiancé will probably not be issued the B-2 visa. In addition, you, yourself, could find yourself in trouble for violating your own H-1B visa. 

However, if you are in full compliance, this could be a legitimate way by which your fiancé could come to America and marry you, and remain in the US with you, as your dependent.

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