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USCIS Clarifies Position on B-2 Extensions for Household Members including Elderly Parents and Cohabitating Partners (non-married) of Nonimmigrant Visa Holders

  • September 10, 2011
  • Richard Newman

Elderly parents and cohabitating (non-married) partners of individuals here on nonimmigrant visas are not eligible for a dependent visa such as L-2s, H-4s and dependent E visas, because they do not qualify under the regulations. This includes elderly parents who live with their grown children. It also includes non-married couples who have lived together as husband and wife for long periods but are not married (more common among Europeans than Asians).

The government’s memo of August 17, 2011, explains that a “household member” of a principal nonimmigrant is a person who regularly resides in the same dwelling place as the principal nonimmigrant or visa holder, and with whom the principal visa holder maintains the type of relationship and care as one normally would expect between nuclear or close family members. These persons may be eligible for B-2 visas to allow them to reside with the principal nonimmigrant visa holder who is in the United States in another status, such as H-1B, L-1, E, F-1, etc.   

The Department of State (DOS) guidance provides for issuance of B-2 visas to these household members. Consular officers who issue a B-2 visa on this basis should make a notation on the B-2 visa stamp of the principal visa holders visa type and duration.  They should also advise the B-2 visa holder to seek admission for one year upon their arrival in the USA at the airport, if they intend to stay in the US for more than 6 months.

While in the United States, the B-2 visa holder may also request timely extensions of their B-2 status with USCIS in 6 month increments for the duration of the principal visa holder’s nonimmigrant status.

The government’s memo is an effort to make clear to USCIS examiners that a B-2 stay of a cohabitating partner or elderly parent can be considered temporary even if it is extended for several years to match the visa status of the principal. However, evidence that the principal visa holder lacks a nonimmigrant (i.e. temporary) purpose – such as where the principal visa holder has filed for adjustment of status to green card – can be considered a negative factor when deciding whether to approve the household member’s B-2 visa extension.

Department of Labor News on Labor Certifications

In July, the DOL temporarily stopped processing prevailing wage determinations for PERM green card cases, a key first step in processing of labor certifications. [This was due to a recent Federal District Court case that required DOL to re-issue 3,500 prevailing wage requests for a temporary visa application known as the H-2B before Oct 1].  As such, the DOL did not have resources and staff to fulfill both prevailing wage obligations.

However, on Sept 9, DOL officials stated that they has completed 80% of the H-2B wage requests and stated that they will resume processing of prevailing wage determinations for PERM cases on a limited basis. DOL stated that they are now working on requests for prevailing wages that were initially filed in early to mid-June and that processing times of 90 days or more are likely to be the normal processing time for about 6 more weeks.

DOL also stated that they expect to return to normal wage processing times for PERM cases of 60 days by mid-October.  Normal processing times for prevailing wages were actually much faster before DOL stopped processing and were taking more like 30 days.  Hopefully DOL will return to the 30-day processing time frame soon.

H-1B Cap Count

As of August 26, 2011, USCIS had received 29,000 filings against the standard H-1B cap of 65,000 and 15,800 filings against the advanced degree cap exemption of 20,000.