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I am writing to ask about a personal circumstance that entails a complex situation, and I would appreciate if any of you could give me some advice.

I am a European citizen who has been living in the US for 6.5 years. I came with a J-1 Research visa to work as a scientist in a State Public University, and about two years ago I transferred to an H1-B visa that expires by the end of 2019. However, I recently earned a position to come back to live and work in my home country in the EU. Since I cannot delay it, I recently resigned from my job in the US and plan to start my new position in the EU in a few weeks. On the other hand, my wife (who is also from the EU) is also working in the US with an H1-B visa that expires on 2020, and she plans to stay in the US for at least half a year more.

Our “problem” lies in that we are expecting a baby that will arrive by the end of December. This will be our second baby; we have a 2 year old kid who has an American passport. For this reason, I would like to stay in the US as much as possible for the next six months. My plan would be to spend two 3-month stays as a tourist to take care of my wife and the kid(s).

My new company in the EU would give me permission to stay in the US for this period. Also, although my primary aim visiting the US is to take care of my family, ideally I’d like to work remotely even if not at full time (I am a programmer). Notice that during this time I wouldn’t keep in touch or hold any professional relationship with my present employer, or any other company in the US. Moreover, our family plan is to leave the US after these six months and therefore I have no intentions of moving to the US permanently.

My inclination is to travel back to the US in late October as a tourist using the VWP. To do so, I have been thinking that I should gather as much evidence of my intentions to avoid any problem with the border officers. For instance, I could present a document from my new EU employer stating that they allow me staying in the US until March due to my personal circumstances (as well as stating what my new EU salary is and that I have a 5-year contract there). I have also thought about getting a letter from my current American employer explaining that they are not planning any professional relationship with me, and that my US visit is entirely due to personal reasons. Finally, I can also obtain official extracts of my EU bank account, as well as copies of my wife’s salary and immigration documents to demonstrate that I can support my visit with my own EU money.

I have a few questions about this:

  1. Does all this sound like a feasible plan? If so, is there any other official document I should bring with me?

  2. Even if this is not problematic when doing it once, should I tell them about my plans of a second 3 month visit after my first visit?

  3. On the other hand, how I am supposed to address the work bit? I wouldn’t be working for any American company, nor having any professional relationship in the US. So my gathering is that I am allowed to work, even if not full-time, during these visits. But if officers ask me, should I be that open about it? This bit worries me, because on the one hand having my own salary in Europe serves as proof of attachment to Europe, but on the other hand they can get picky if I keep some professional activity whilst visiting my wife?

  4. Finally, I have also thought about trying to get a B2 visa that would allow me staying in the US for 6 months without any problem when travelling back and forth. But I am not sure if my 6.5 stay in the US on J-1 and H1-B visas might be an impediment to obtain it, and whether any potential rejection would entail not having access to the VWP?

Thanks a lot!

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  • May provide a partial answer travel.stackexchange.com/questions/12771/… – Traveller Sep 14 '18 at 1:16
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    The visa waiver programme is for visitors. If US immigration think you're trying to live in the US by repeated lengthy visits it won't end well. Doubly so if they think you're working illegally. If it's your intention to continue living in the US for another six months, apply for the proper paperwork. The alternative is some or all of: denial of entry, deportation, a lengthy ban, and trouble with visa applications in many places around the world for years. – user79658 Sep 14 '18 at 2:50
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    I don't know a ton about this particular kind of situation, and it may be a good idea to speak to the immigration lawyers who advise your wife's employers on H-1B matters, but have you considered the possibility of an H-4 visa? That would allow you to stay in the US as long as your wife is eligible and would avoid the danger in being sent back at immigration due to your weak ties to Europe and your plan to live in the US as a visitor for an extended period of time. It seems like a much safer route than risking wrecking your US immigration record by trying to do this under the VWP. – Zach Lipton Sep 14 '18 at 2:52
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    Note though that an H-4 does not appear to allow remote work. Under the right circumstances, you can get an employment authorization document to legally work with an H-4, though the government is trying to eliminate that right now, so that may be a reason to move quickly. – Zach Lipton Sep 14 '18 at 2:54
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You are overly complicating a matter which should not be complicated. Just get an H4 through your wife. It is virtually automatic, not complicated, and issued fast just like a B1/B2.

H4 like the H1B allows dual intent so nobody will have a problem with you working remotely for a company in your country while you are here, nor will they question if you seek to remain here, question your old employer etc.

My spouse used an H4 similarly while living and working in my home country and visiting the USA for extended periods.

Alternative (but just a little more risky) is get a visitors visa. Visiting the USA twice in a six month window and spending a couple months each visit is not unheard of at all.

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  • Great answer overall, but the claim "nobody will have a problem with you working remotely" is dubious – krubo Sep 14 '18 at 16:09
  • @krubo I have just spoken to a US attorney informally about the possibility of working remotely for my current UK employer while in the US on an H4 visa (my wife is getting H1 status). I was told that if I work from home and my job does not involve visits to (or work for) US clients, then I should be free to continue to be paid as if I were still in the UK, and that this would not be in violation of my visa. justanswer.com/immigration-law/… – Augustine of Hippo Sep 14 '18 at 17:43
  • I had originally considered transferring from H1-B to H4 while in the US. However, I learned that travelling to Europe while pending would lead to USCIS dropping the case. If I understand correctly, your suggestion is to go to American embassy in my country to file a petition for an H4? I have read that transferring to H4 in the US will take a few months, do you know if doing it at the American embassy will be quicker? Thanks a lot for your help – Ernest Sep 14 '18 at 22:06
  • Getting H4 doesn’t take a week. You apply for the visa just like a B1/B2, it is only you Carey along your wife’s approved petition as evidence. Don’t go the transfer route because it takes weeks to months for approval and you may be outside USA and it will automatically be cancelled. – Augustine of Hippo Sep 14 '18 at 22:36
  • Sorry for asking yet again. Do you mean that getting H4 from my home country takes less than a week (after the interview at the American embassy)? Even if so, should I worry about asking for an H4 visa after 6 years in the US on J1/H1b status? I worry they might think having a job in my home country is not enough evidence of ties and plans to return after spending a few months in the US... In any case, thanks again – Ernest Sep 15 '18 at 1:14

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