What visa should I use to enter the United States to attend a court hearing?

Question: I need your help returning to the United States to attend a divorce hearing located in Atlanta, Georgia. I currently live in Sheanyag, China with my U.S. citizen infant son.

I first came to the United States in 2012 in H-4 status. At the time, I was accompanying my husband who was coming to Atlanta to live and work. My visa was valid from 2012 to 2015.

After entering the United States, the relationship with my husband began to sour and we fought constantly. I tried very hard to make him happy, but everything I did was not good enough. Eventually, he requested that I return to China to take care of some family business. He drove me to the airport and dropped me off.

Once I attended to my family business in China, I requested my husband to complete the immigration paperwork to reissue a new H-4 visa for me. He refused to complete the immigration paperwork and filed for divorce in Atlanta. He also filed a report with the FBI stating that I kidnapped my son and disappeared.

Now, I desperately need to get back to the United States to attend the divorce hearing, and deny the vicious and false charges made against me by my husband.

Answer: Thank you for your question. I understand that you are under a lot of stress right now. Based on the information before me, you should not apply for H-4 (dependent H-1) visa; rather you should consider applying for a B-2 (visitor) visa.

Do not apply for an H-4 visa because you are not accompanying or following to join your husband, the principal H-1 visa holder

You are eligible for an H-4 visa only if: (1) you are accompanying or following to join your husband, the principal H-1 visa holder; and (2) you are otherwise admissible. 8 C.F.R. § 214.2(h)(9)(iv) (2015). Here, accompanying means that you are applying for an H-4 visa at the same time when the principal applies for and H-1 visa or within 6 months of the principal obtaining the H-1 visa. If you apply for an H-4 visa 6 months after the H-1 visa was issued to the principal, you are not “accompanying” but rather “following to join” the principal alien. Since your husband received his H-1 visa in 2013, you cannot “accompany” him. You may only “follow to join” him in the United States.  

Furthermore, there is another aspect to the meaning of “accompanying” or “following to join” that needs to be discussed. A spouse must “accompany” or “join” the principal after she enters the U.S., i.e., the spouse must, after entering the U.S., live together with the principal as husband and wife. If, however, the spouse does not intend to “join” the principal after she enters the U.S., the spouse is not eligible for an H-4 visa according to 8 C.F.R. § 214.2(h)(9)(iv) and should not apply for it.

Consider applying for a B-2 (visitor) visa

 A B-2 visa is issued to applicants who want to visit the United States temporarily for pleasure. Coming to the U.S. for the purposes of litigation or court proceedings are legitimate reasons to request a B-2 visa. I have seen several B-2 visas being approved based on these reasons. As an applicant, however, you must truthfully disclose the purpose of your travel and provide sufficient court documents to the U.S. consulate to explain the reason for your travel. Each B-2 applicant is the principal applicant. There is no “dependent” in B-2 visa context. Therefore, you may obtain a B-2 visa on your own without the knowledge or cooperation of your husband.

Based on the facts you provided in your question, it is my opinion that you should consider applying for a B-2 visa to attend the divorce hearing. If you have additional questions or concerns, please contact my office at (716) 565-6270 or email me directly at nmurchie@murchielaw.com. Good luck.