Tourist Visa before marriage

[j-h-1989 0]

Hi there,

Apologies if these questions have been asked before!

I am currently here in the U.S. on an ESTA which runs out in January, staying with my fiance. We are both British, and he is living here now because he has a job in a British school. We love it here and plan to stay for a few years.

We are getting married in the UK in July, so have been advised that when my ESTA expires in January I should go to the UK and apply for a B2 visa which will give me 6 months on a tourism visa, and then when we get married I become his derivitive. Please do correct me if I'm wrong!

I'm just wondering about the application for a B2 and how open to be when I have the interview-surely if I say that my fiance lives there and we plan to marry in the UK, they may decline the application because I "intend to stay" or are they understanding in these circumstances?

Thanks for any advice.

[JFH 12,189]

You cannot apply for or use a tourist visa with the intention of staying. As a UK citizen it's very unlikely you would get a B2 anyway as the ESTA is there for you to use. How would you support yourself for six months anyway? The B2 is intended for people who can legitimately take a 6-month holiday such as retired people. It's rarely granted to people of working age.

Unfortunately with immigration laws there are no shades of grey. It's very black and white and there is no "compassion" or "understanding" for couples in love. There is a process and we all have to follow it.

What do you mean your ESTA "expires" in January? Do you mean your passport stamp runs out in January? Are you working in the uk?

Don't even bother applying for the B2. Use your ESTA (it lasts for two years for unlimited trips, if your two years are up just get another) and visit when you can.

Edited because I re-read things and I think your boyfriend is not a US citizen? It's not clear? I understood it that he had been living with you in the UK but returned to the USA with a job offer but I don't think that's the case. What status does your boyfriend have?

Edited December 11, 2015 by JFH

[JFH 12,189]

Ok, fiancé is British. Is he a permanent resident there? Or on a temporary work visa?

[j-h-1989 0]

I am no longer working as I took a year off to be able to visit him in the US and see how it worked out. I will have been here for 6 months by January, having renewed the ESTA once. I am financially supporting myself but want to avoid having to fly back to renew it every time.

An attorney I had some free advice from said the best option is to be here from Jan-June on a tourist visa.

[Transborderwife 4,666]

Is your bf on a work visa or a permanent resident? How are you supporting yourself? Highly unlikely you'll get a b2 with no ties to the UK

[az2014 381]

What do you mean you would have been there 6 months by January?

An ESTA is just pre-authorisation to use the VWP, and it lasts 2 years at a time. On the VWP you can only stay 90 days at a time, applying for a new ESTA does not change that.

When did you first enter the US on the VWP on this trip?

[j-h-1989 0]

He is on a temporary working visa for 10 years.

I entered the states in August on an ESTA I had previously obtained. The 2 years completely ran out in November so I was able to apply for a new 2 years which started in November. Is the consensus here that it is better to try and stay here 90 days at a time until we are married, rather than apply for a b2?

If I apply for a B2 and it is declined, will there be complications once we are married and I am trying to enter on my fiance's visa?

[JFH 12,189]

What do you mean you would have been there 6 months by January?

An ESTA is just pre-authorisation to use the VWP, and it lasts 2 years at a time. On the VWP you can only stay 90 days at a time, applying for a new ESTA does not change that.

When did you first enter the US on the VWP on this trip?

The way I understand it, the OP stayed for 90 days, returned home and almost immediately went back for 90 days. If that's the case, the OP is skating on very thin ice. To all intents and purposes they are living in the US but without the correct permission to do so. No job at home, and spending as much, if not more, time in the US than at home in the last 12 months is a huuuuge red flag for CBP. Yes, a B2 allows a stay of 6 months but only for genuine tourists. Not for people who are as good as living there. Whichever lawyer told you to get a B2 to live with your fella, I hope you didn't pay him.

With th amount of time you gave spent there recently, you could fall into the radar of the IRS too.

Think very carefully about going back so soon after January. The rule of thumb is to spend as much time out as you were in the country. So if you did the full 90 days last time, stay out for 90 days. I know it's hard. I've been doing this for years. My husband lives in the US and we cannot live together until my visa is approved. It is what it is.

[az2014 381]

He is on a temporary working visa for 10 years.

I entered the states in August on an ESTA I had previously obtained. The 2 years completely ran out in November so I was able to apply for a new 2 years which started in November. Is the consensus here that it is better to try and stay here 90 days at a time until we are married, rather than apply for a b2?

If I apply for a B2 and it is declined, will there be complications once we are married and I am trying to enter on my fiance's visa?

So you entered in August under the VWP and have not left the USA at all since?

[JFH 12,189]

He is on a temporary working visa for 10 years.

I entered the states in August on an ESTA I had previously obtained. The 2 years completely ran out in November so I was able to apply for a new 2 years which started in November. Is the consensus here that it is better to try and stay here 90 days at a time until we are married, rather than apply for a b2?

If I apply for a B2 and it is declined, will there be complications once we are married and I am trying to enter on my fiance's visa?

If you are declined for a B2 (and you almost certainly will be with no funds and no reason why you can't use an ESTA as you are clearly eligible for the ESTA), you will need to declare this rejection on future ESTA applications. But it's a moot point because you are most likely not going to get a B2. It's not intended for your purposes. So I would remove all thoughts of B2 from your head. You will be wasting time and money applying for it.

Even with an ESTA you need to be careful of staying a full 90 days then doing a quick dash home and coming back again. Again, that's not what it's for. It's not intended for people to live in the US on 90-day installments. It's intended for holidays and visits. You are going to draw a lot of negative attention to yourself from CBP if you continue this way. You may well be denied entry the next time you try to enter because you have two recent back-to-back 90-day stays.

When you arrived, did they ask you what you do for a living and what did you say?

Are you saying you've overstayed?

Edited December 11, 2015 by JFH

[Transborderwife 4,666]

He is on a temporary working visa for 10 years.

I entered the states in August on an ESTA I had previously obtained. The 2 years completely ran out in November so I was able to apply for a new 2 years which started in November. Is the consensus here that it is better to try and stay here 90 days at a time until we are married, rather than apply for a b2?

If I apply for a B2 and it is declined, will there be complications once we are married and I am trying to enter on my fiance's visa?

It would be easier to advise you if we knew the class of visa that he's on (ie: hb1, l1, r1 etc) in regards to derivative visas. Be prepared that you may not be allowed to work depending on the visa class.

If denied a b2 waive goodbye to vwp as well. I'd spend some time in the UK lest you be slapped with a denial of entry and possible expedited removal in the future.

[j-h-1989 0]

Thank you for your feedback-I have funds though and more than enough to last me until we get married. I have done a lot of saving so even without a regular income that won't be an issue.

[Transborderwife 4,666]

Not the point, cbp couldn't care less how much money you have, time to spend some time at home.

[JFH 12,189]

What category of employment visa does your fiancé have?

Also, have you been there since August without going back to the UK in between?

[JFH 12,189]

The money is not the main issue. The legality of what you are doing is the problem. As I said, the VWP is not intended for people to live there in 90-day increments. Otherwise we would all do that and there would be no need to jump through the hoops we have to get our spouse visas.

At least you have enough to finance your visits and won't be tempted to work illegally. But you absolutely MUST demonstrate ties to the UK and return and spend a good few months here.