Traveling to the US and Married to an American

Q: I am an UK citizen married to an American and we are currently living in Chiang Mai, Thailand. I have a Thai visa and work permit. I am going to be spending a lot of time in the USA trying to get our business off the ground there. At most I’ll be staying one month at the time and then return to Asia. However, I will be visiting the US regularly over the course of the next year or so and ultimately might even relocate.

Can I visit on and off the US using a tourist visa or are there any restrictions? Anything else I should do/not do?

A: This is a very good question and the situation you described is quite common among many Americans residing abroad with foreign nationality spouses. You actually have three ways to approach this predicament, and before I make these suggestions, the presumption here is that your wife does have US Citizenship (USC) and not a Lawful Permanent Resident (LPR). If she is an LPR, please advise and I will modify the information below.

You actually have three options, the non-immigrant B-2 Tourist Visa, an I-130 Petition for an Immediate Relative – which is an immigrant visa, and as a member country of the US Visa Waiver Program, you may travel to the US without a “visa” so long as you have an epassport. In most cases with aliens married to USCs, the Bangkok Consulate will issue a 10 year multiple entry visa so that you can travel back and forth during the validity of such visa.

However, each visit may be limited by the Customs Border Patrol officers at the port of entry who will stamp on your passport the actual time you are allowed in the United States. Keep in mind that the initial visit is usually no more than six months. That being said, there are provisions for extending your visa in the US if you need to stay longer. Sometimes, my clients would make a “run to the border” for the day to either Canada or Mexico and come back with visa renewed. 

In all practicality, I’d recommend that you use the Visa Waiver Program each time you travel. It does not require any additional fee or paperwork and it is a privilege that are only allotted to certain member countries. However, if you want to pursue a B-2 prior to departure here’s the information.

The B-2 visa is quite common for temporary business and pleasure, although no paid employment is allowed under this status. You must be clear to establish with the Bangkok Consulate that you are not working in any capacity while in the US under the B-2 visa as it is deemed a violation of the Immigration and Nationality Act under section 101(a)(15)(B) of the INA & USC section 1101 (A)(15)]. This visa accommodates the non-US national who wants to travel to the US as a tourist for pleasure, and intends to conduct “legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment and activities of a fraternal, social, or service nature” [22CFR 541.31(b)(2)]. Nonetheless, it may be utilized for temporary employment such as exploring business opportunities, or business consulting.

In preparing for a B-2 visa application it is important to remember that the interviewing officer must, by law, presume that the applicant does not intend to return to his home country. It is therefore up to the applicant to convince the interviewing officer that he/she will return to their country before their period of authorized stay on their B-2 visa expires. There is an interview required at the Bangkok Consulate, but it should be quite brief and painless if you are prepared and courteous.

The most important general requirement for B-2 visas is that the alien overcome, to the satisfaction of the consular officer and the border inspection official, the legal presumption that the alien is actually intending to immigrate to the United States.

• Evidence of strong ties to the home country, including:

  • Immediate and extended family present in the home country

  • Career opportunities such as a family business, job offers or a history of specific industry employment in the home country

  • Membership in social, business, religious, professional, political or other groups, particularly those in which the alien has invested significant time and money

  • Ownership of property, particularly including an actual residence or commercial property actively managed for the production of income such as business premises for the applicant’s business.

  • Interests or opportunities which may be lost if the alien does not return to the home country, such as loss of employment or career opportunities, inability to finish a nearly completed degree, etc.

   

• Absence of ties to the U.S. and explanation of any existing ties, such as:

  • That any family members residing in the U.S. are there temporarily and have strong ties abroad

  • Career opportunities in applicant’s field of work are less in the U.S. than in home country

• History of previous visits to the U.S. and return to home country under terms of visa issued.

  • If the applicant has previously been outside their home country (especially to the United States) and then returned to their home country, this is evidence that tends to indicate that they will return to their home country again. In other words, that they can, be trusted not to violate the terms of their visa. The best evidence of this is the applicants current and old passports showing entry and exit stamps.

  • Evidence of travel to other countries and return to home country may be helpful but, not to the extent that prior compliant travel to the U.S.

   

• Adequate financial arrangements for the trip, including:

  • Pre-purchased round trip ticket (Note: If planning on purchasing non-refundable tickets, it may be prudent to provide a proposed flight itinerary instead rather than running the risk of paying for non-refundable tickets when the outcome of the visa application remains in doubt)

  • Evidence of funds to be brought by or able to be accessed by the alien

  • Sponsoring employer’s obligation for expenses/salary

  • An Affidavit of Support (Form I-134/old form) executed by USC or LPR along with a letter explaining the temporary nature of the trip may be helpful in some cases, but, see explanatory note to # 2 above.

   

• Specific travel plans, including:

  • Detailed itinerary, and/or other documents confirming specific temporary visit plans. If your trip is to be focused on a specific event such as a wedding, religious ceremony, award ceremony, etc., evidence that the event is taking place such as invitations may be helpful.

Alternatively, you may also apply for an Immigrant visa, which your USC spouse can petition on your behalf. Lets distinguish here that an immigrant visa allows you to work, petition others, and pave the way to your US Citizenship. The trick is that you will have to convince the Bangkok Consulate that you have a bona fide marriage with your spouse (i.e. children, jointly owned property, bills, longevity of marriage) AND you INTEND to reside in the USA permanently. If you are considering this in the future, then this is not the proper route for you at this juncture. They will not issue you an immigrant visa if you are only planning on working in the US temporary and eventually relocate, that situation would require you to apply when your intent is to permanent relocate to the US.

One other tidbit of information regarding the B-2 visa, is that while on this particular visa, you can actually change your status to an immigrant visa once you are ready to make the US your home. This is the only exception allowed under the B-2 visa.