Suppose Alice and Bob get married in country C. Alice is a citizen on the U.S. and Bob is a citizen of country C. Both of them live permanently in country C.

Suppose that Alice and Bob want to occasionally visit to the U.S. together without staying there permanently. What type of visa does Bob get? He is worried about the different options:

  • A tourist visa application might be rejected because Bob is married to a U.S. citizen and it is hard to make the case that he doesn't intend to stay in the U.S.
  • An application for an immigrant visa wouldn't make sense because Bob isn't intending to immigrate to the U.S.
  • A K-3 visa is technically a non-immigrant visa, but it seems like in effect it is a visa to visit the U.S. while waiting for an immigrant visa application to finish processing, which has the same problem as the previous point.
  • Even if Bob obtains a green card, he could lose it by staying outside the U.S. for more than a year.

Alice and Bob might want to immigrate to the U.S. at some point in the future (10 years, say) and don't want to do anything that would prevent that option.

Ideally, Alice and Bob would like the freedom to enter and leave the U.S. at any time and stay for as long or as short as they like, and as often or as rarely as they like.

What should Bob do?

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    By the way, K-3 is obsolete; nobody gets it anymore. They would get an immigrant visa directly. – user102008 Feb 22 '18 at 23:34
  • Is "as long as they'd like" likely to be longer than six months? If not, there's not likely to be any problem. – phoog Feb 23 '18 at 2:05

The only appropriate visa would be a visitor visa (or visit on the Visa Waiver Program, if Bob's nationality is part of the VWP; or if Bob is Canadian, just enter as a visitor without visa), since Bob's intention is to visit temporarily and leave. Yes, he might be denied the visa for failing to overcome the presumption of immigrant intent. He should provide strong evidence of his ties to his home country, that he doesn't intent do leave that country in the near future, that his US citizen spouse doesn't intent to leave that country in the near future either, etc.

There are nonimmigrant visas that are not affected by immigrant intent, e.g. H or L work visas, but he is not intending to work in the US. Applying to immigrate would involve a long and expensive process, and, as you said, he doesn't intent to stay in the US, so would lose his permanent residency anyway, so it's a big waste.

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    If country C is a VWP country and Bob does not want to stay for longer than 90 days, he should use the VWP. – phoog Feb 23 '18 at 4:44
  • I am Bob, inasmuch as that is exactly my situation. Despite being a citizen of a visa waiver country, INS (when it was such) advised me to get a B1/B2 visa, which they were happy enough to issue when I explained my situation, and it is on that that I enter the US. I do so fairly frequently, and have not had a problem so doing. – MadHatter Nov 8 '18 at 12:36

Ideally, Alice and Bob would like the freedom to enter and leave the U.S. at any time and stay for as long or as short as they like, and as often or as rarely as they like.

The simple fact is: this freedom will be next to impossible to achieve.

If Bob wishes to visit for extended periods of time with his US spouse, the authorities will almost certainly suspect immigrant intent, and the only way to convince them that Bob won't settle in the US is bringing solid proof that Alice also isn't going to settle there anytime soon.

And even then, that evidence is going to mean less and less if Bob and Alice keep visiting often for long periods of time. Bob will eventually get in trouble for this.

So sorry to say this, but US law just isn't designed to fit the desires of Alice and Bob. The authorities want to be able to clearly profile each foreigner: either they're a visitor, in which case they don't normally spend extended periods of time there, or they're a resident, in which case they consistently live there.

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  • While this is true in theory, it seems to be rare in practice. There are plenty of US expatriates who visit the US frequently with their foreign spouses without any trouble. I know a few myself. A question about residence and employment, answered with a verbal declaration that they live and work in country C, is as far as any investigation is likely to – phoog Feb 23 '18 at 4:46
  • @phoog Meanwhile I've overheard similar cases at US immigration several times, as I was right behind them (or almost) in the queue. They were being heavily grilled over their circumstances, which seemed to be similar to OP's. So if anything it depends on the officer. – Crazydre Feb 23 '18 at 7:41
  • @phoog Also, those People you know, do they visit frequently and for Extended peiods of time? That's the specific combination that will eventually become problematic. Frequent visits never exceeding 2 weeks (for example) is much safer. – Crazydre Feb 23 '18 at 7:43
  • Define "frequent" and "extended period of time." – phoog Feb 23 '18 at 8:09
  • @phoog For example spending more than 6 months a year in total – Crazydre Feb 23 '18 at 8:59

Ideally, Alice and Bob would like the freedom to enter and leave the U.S. at any time and stay for as long or as short as they like, and as often or as rarely as they like.

This freedom is only guaranteed to US citizens, therefore the only proper answer to your question is: have Bob become a US citizen. It will take time, effort and dealing with the bureaucratic machinery but at the end of the day Bob will be free to do whatever he wants in the US, whenever he feels like it.

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  • While this answer is true, it's not possible under the assumptions of the question. – phoog Feb 23 '18 at 16:55
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    @phoog then the answer is that Bob is screwed and won't be able to enjoy the US as he wishes. – JonathanReez Feb 23 '18 at 16:56
  • Perhaps in theory, but in practice it's unlikely. If he does in fact wish to spend more than half of his time in the US, he can get a green card and eventually perhaps naturalize. The green card is almost as good as citizenship, since it only puts a fairly light restriction on how rarely one can visit the US. As it is, since he's settled in country C, it's unlikely that he'll have enough free time that "as long ... and as often" as he likes will make the border officers worried about possible immigrant intent. – phoog Feb 24 '18 at 4:46

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