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9 FAM 402
Nonimmigrant Visa Classifications

9 FAM 402.1

Overview of NIV Classifications

(CT:VISA-585; 05-21-2018)
(Office of Origin: CA/VO/L/R)

9 FAM 402.1-1 Statutory and REgulatory Authorities

9 FAM 402.1-1(A) Immigration and Nationality Act

(CT:VISA-1; 11-18-2015)

INA 101(a)(15) (8 U.S.C. 1101(a)(15)); INA 101(a)(26) (8 U.S.C. 1101(a)(26)); INA 291 (8 U.S.C. 1363).

9 FAM 402.1-1(B) Code of Federal Regulations

(CT:VISA-1; 11-18-2015)

22 CFR 41.11; 22 CFR 41.22(b).

9 FAM 402.1-2 Introduction to NIV Classification

(CT:VISA-257; 11-30-2016)

A visa issued to a nonimmigrant alien within one of the classes described in this section must bear an appropriate visa symbol to show the classification of the alien. The symbol must be inserted in the space provided on the visa. The following visa symbols must be used:

Nonimmigrants

[Source: 22 CFR 41.12]

9 FAM 402.1-3 Choice of Classification

(CT:VISA-585; 05-21-2018)

a. Principal Purpose of Admission: An alien desiring to come to the United States for one principal, and one or more incidental purposes, must be classified in accordance with the principal purpose. For example, you must classify an alien seeking to enter the United States as a student who desires, prior to entering an approved school, to make a tourist trip of not more than 30 days within the United States, as F-1 or M-1. Also, when a family members primary purpose to come to the United States is to accompany the principal, the classification of the accompanying family member is either of a derivative of the principal if the classification provides or as a B-2, if not. This is the case even if the accompanying family member decides to attend school. (See 9 FAM 402.1-5(C) below.)

b. Choice When More Than One Classification Possible: When it appears that an alien can properly be classified under two or more nonimmigrant classifications, you must explain to the alien the terms and requirements of each, including documentary requirements, maximum lengths of stay which may be authorized upon admission, and any other pertinent factors. You must then base the classification of the visa on the aliens stated preference. (See the Visa "Reciprocity Schedule.)

c. No Alternative to A and G Classification: The provisions of 22 CFR 41.22(b) relating to the A and G classifications are always controlling. You must not suggest alternative classifications.

9 FAM 402.1-4 Classification of Spouse

9 FAM 402.1-4(A) Derivative Classification of Spouse Accompanying the Principal Alien

(CT:VISA-1; 11-18-2015)

In all nonimmigrant classifications except B, C, D, K, and V, the principal aliens spouse is entitled to derivative nonimmigrant classification. You must be satisfied that a valid marital relationship exists. If the spouse is applying in company with the principal alien, the determination that the principal alien is eligible for one of the nonimmigrant classifications is sufficient to establish that the spouse is eligible for the corresponding derivative classification.

9 FAM 402.1-4(B) Principal Alien Must be Maintaining Status for Spouse to Receive Derivative Classification

(CT:VISA-1; 11-18-2015)

If the spouse is seeking to follow to join a principal alien already in the United States, you must be satisfied that the principal alien is, in fact, maintaining the nonimmigrant status from which the spouse seeks derivative classification. In questionable cases, you may request verification from the Department of Homeland Security (DHS) or from the Department for holders of A, G, and NATO visas. If, in the course of processing an application, you learn that the principal alien is not in fact maintaining the status claimed (for example, is not pursuing a full course of study, participating in an exchange program, or performing the specified services or undertaking the specified training), such information must be reported to the appropriate DHS district office. (See 9 FAM 402.1-4(C) below concerning nonimmigrant intent.)

9 FAM 402.1-4(C) Establishment of Nonimmigrant Status Also Required for Derivative Classification

(CT:VISA-395; 07-14-2017)

A spouse applying for a visa on the basis of derivative classification must establish the requisite nonimmigrant intent to the same extent as the principal alien. Thus, an applicant for a(n) F-2, J-2, H-4 (except the derivatives of an H-1), M-2, O-3, and P-4 visa must establish having a residence in a foreign country which the applicant has no intention of abandoning. If the spouse is applying for a visa in the same company with the principal alien, both applicants must be evaluated collectively. Differing conclusions concerning their entitlement to nonimmigrant classification would be rare and must be based on clearly defined, objective differences in their situations. If the derivative applicant is seeking to join a principal applicant already in the United States, a different situation may exist from that which existed at the time of the issuance of the principal aliens visa and could justify a determination by you that the derivative applicant does not have the requisite nonimmigrant intent.

9 FAM 402.1-4(D) Choice of Alternate Classification When Derivative Status is Too Limiting for Spouse

(CT:VISA-1; 11-18-2015)

A spouse eligible for derivative classification may also qualify for and be issued another type of visa. For instance, the spouse of an F-1 student may wish to work. Since F-2 visa holders may not work, the spouse may wish to apply for an immigrant visa (IV), temporary worker visa, or another type of visa, which allows work for pay.

9 FAM 402.1-4(E) Derivative Nonimmigrant Classification for Spouse of Permanent Resident Alien Signing INA 247(b) Waiver

(CT:VISA-585; 05-21-2018)

A permanent resident may accept a position or establish a business, which, if the alien were a nonimmigrant, would lead to A, E, or G classification. In order to retain permanent residence, the alien must sign a waiver of rights, privileges, exemptions, and immunities under INA 247(b). However, the spouse of such an alien may be granted derivative A, E, or G status if the spouse is a nonimmigrant or does not wish to maintain permanent residence. As an example, a permanent resident who is a citizen of a small country might be named to the countrys permanent U.N. delegation in a non-diplomatic agent position. The alien could retain permanent residence by signing the waiver. The spouse may, however, be granted derivative G-1 status if the spouse does not wish to maintain permanent residence or has never had it. For instance, if the principal alien has married after becoming a permanent resident and the spouse does not wish to remain permanently in the United States because of illness in the family abroad, a derivative G classification would be the only way for the spouse to join the principal alien for visits from time to time.

9 FAM 402.1-4(F) Classification of Spouse Accompanying Alien Crew Member

(CT:VISA-1; 11-18-2015)

The spouse of an alien crewmember entering the United States as a nonimmigrant under INA 101(a)(15)(D), who is coming to the United States solely to accompany the principal alien, is classifiable B-2. (See 9 FAM 402.2-4(A).)

9 FAM 402.1-4(G) Classification of Party to Proxy Marriage

(CT:VISA-1; 11-18-2015)

a. INA 101(a)(35) provides that the term spouse, wife, or husband does not include a party to a proxy marriage, which has not been consummated.

b. Therefore, a spouse by a proxy marriage, which has not been consummated, cannot derive a nonimmigrant classification from a principal alien in the United States. In such cases, a B-2 visa may be issued to an otherwise qualified proxy spouse, provided you conclude that the principal alien in the United States is maintaining the appropriate nonimmigrant status and that the spouse seeks to travel to the United States for the purpose of joining the principal alien. After admission to the United States in B-2 status and consummation of the marriage, the spouse by proxy marriage can then apply to DHS for a change to the appropriate derivative nonimmigrant status.

9 FAM 402.1-5 Classification of Child

9 FAM 402.1-5(A) Derivative Classification of Child Accompanying or Following to Join the Principal Alien

(CT:VISA-1; 11-18-2015)

The provisions of 9 FAM 402.1-4(A) and (B) above are applicable to an alien child of a principal alien, provided the child is a child as defined in INA 101(b)(1)(A) through (E).

9 FAM 402.1-5(B) Adopted Children

(CT:VISA-395; 07-14-2017)

a. Children adopted by American citizens who do not intend to live in the United States may visit the United States on NIVs (see 9 FAM 402.2-4(B)(4)) and, in some cases, qualify for a B-2 visa to participate in expeditious naturalization procedures (9 FAM 402.2-4(B)(7)).

b. Adopted children who meet INA 101(b)(1)(E) criteria may also qualify for nonimmigrant status as the derivative child of a principal NIV applicant. For example, the principal applicant for a nonimmigrant F visa may bring their adopted child to the United States under the nonimmigrant F-2 classification as long as the otherwise-qualified child was adopted before age 16 and has already spent two years in the applicants residence and custody.

NOTE: Unless INA 101(b)(1)(E) requirements are met, the adopted child does not qualify as a derivative child; INA 101(b)(1)(F) criteria cannot be applied to nonimmigrant derivative cases. However, as stated in 9 FAM 402.3-4(J)(3), to qualify for derivative A or G NIV status as a member of the principal aliens immediate family, a legal son or daughter need not have qualified as a child as defined in INA 101(b)(1).

c. You must carefully review NIV applications for children who have been adopted or will be adopted by U.S. citizens and who intend to live in the United States with their adoptive parents. Such children may wish to visit the United States for a short period of time and return to their country of residence for IV processing, thereby satisfying INA 214(b) provisions and qualifying for a B-2 visa. However, for cases where you are not satisfied that the child will return to their place of residence, a NIV should not be issued to the child. Such an issuance would violate the law, circumvent scrutiny intended to protect the child and adoptive parents, and place the child in an untenable immigration predicament since DHS regulations generally prohibit the approval of an immigrant petition for a child who is in the United States either illegally or in nonimmigrant status.

d. In rare cases where there are significant humanitarian concerns (i.e., natural disaster, civil disorder/war, etc.), adoptive parents may seek humanitarian parole for an adoptive child who will be legally able to adjust status in the United States based on an immigrant classification (see 9 FAM 202.3-3).

e. You should also recognize that you may also very occasionally encounter cases of adopted children who are not eligible for any immigrant or NIV classification, usually due to their advanced age or the circumstances of the adoption.

9 FAM 402.1-5(C) Classification of Children Who Will also be Attending School

(CT:VISA-1; 11-18-2015)

A principal aliens child entitled to derivative nonimmigrant classification from the principal alien is not required to qualify under INA 101(a)(15)(F) as a nonimmigrant student, even though the child will attend school in the United States while accompanying the principal alien.

9 FAM 402.1-6 Issuance of Nonimmigrant Visas (NIV) to Spouses and/or Children When Principal is in Status but Has No Visa

(CT:VISA-1; 11-18-2015)

Derivative beneficiaries are entitled to apply for visas to follow and/or join principals who are maintaining status in the United States, even when the principal was never issued a visa in the classification being sought by the dependent. Take, for instance, a world-class soccer player, who changes his or her status from F-1 to O-1. The spouse and/or children are entitled to apply for nonimmigrant O-3 visas. Typical documentation for establishing entitlement to visas in such an instance might include marriage and birth certificates for the spouse and dependent(s), a copy of the principal beneficiary's approval notice, and any Form I-797, Notice of Action notices relating to the dependents' own change of status filings. Another example would be a foreign national who entered the United States on a B-1 visa and subsequently changed status to F-1. The spouse and/or child of the F-1 would be entitled to seek F-2 visas. In such cases, the dependent would need to present a properly endorsed Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status - for Academic and Language Students, as evidence that the principal is enrolled, or will be enrolled within 60 days, in a full course of study or is in approved practical training.

 

 

 

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