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back to index backGLOBALtalk December,  2011


US Visa Solutions for Unmarried Couples

Many U.S. companies obtain visas to authorize foreign professionals to come to the U.S. for employment.  These professionals often have an accompanying spouse and children.  These family members are usually eligible for visas based on that family relationship.  But less traditional relationships – unmarried or same sex partners – do not qualify for such visa status.  How can the U.S. company get the skilled professional they need if there is no visa solution for their partner?

The answer is the B-2 visa.  Although primarily used for tourism, the U.S. Department of State authorizes use of the B-2 for nontraditional "spousal" relationships for the purpose of foreigners accompanying a long-term nonimmigrant visa holder, such as an H-1B or L-1 worker.

The B-2 Visa is available to Members of a Household

U.S. consular officers frequently encounter cases involving long-term nonimmigrants in various visa categories with a cohabitating partner who wishes to accompany them to the United States.  Unless the relationship is recognized under law as being fully equivalent to a traditional marriage, and grants the parties all the same rights and duties as a traditional marriage, the cohabitating partner cannot qualify for derivative visa status.

The solution developed by the U.S. Department of State for cohabitating partners of temporary workers is the use of the B-2 visa.  The partner must otherwise be qualified for the B visa classification.  This is true for both opposite and same-sex partners.

The use of the B-2 extends beyond cohabiting partners.  The State Department's Foreign Affairs Manual makes the B-2 available to "members of the household of another alien in long-term nonimmigrant status, but who are not eligible for derivative status under that alien's visa classification."

Examples where B-2 status may be available include:

- Cohabitating partners of temporary workers, students, and diplomats posted to the United States;
- Members of the household of a U.S. citizen who normally lives and works overseas, but is returning to the United States for a temporary time period;
- Elderly parents of temporary workers, students, and diplomats posted to the United States; and
- A spouse or child who qualifies for derivative status (other than derivative A or G status) but for whom it may be inconvenient or impossible to apply for the proper H-4, L-2, F-2, or other derivative visa.
- The U.S. Citizenship and Immigration Services ("USCIS") regulations allow a maximum initial admission in B-2 status of only one year.  Most often B-2 visitors are granted an initial admission of up to six months.  Extensions of stay can be requested in increments of up to six months.  There is no absolute limit on the maximum length of stay available in B-2 status, provided that the relative maintains valid status.

The fact that the cohabitating partner may be living in the U.S. for an extended period does not preclude use of the B-2 visa, but may raise other issues.  The period of time projected for the visit must be consistent with the stated purpose of the trip (i.e., the work visa duration for the relative).  The applicant must establish that departure from the United States will take place upon completion of the temporary visit. But the fact that the period of stay in a given case may exceed six months or a year does not disqualify the trip from being temporary, provided that the government officer is satisfied that the intended stay actually has a time limitation and is not indefinite in nature.

The Accompanying Partner Must Show Nonimmigrant Intent

As with most other nonimmigrant visa categories, cohabitating partners must prove that they have nonimmigrant intent and will return to their home country after their temporary stay.  Even when the "principal" nonimmigrant visa holder is exempt from the residence abroad requirement, such as under H-1B or L-1, the accompanying B-2 partner must establish the existence of a residence abroad that the partner does not intend to abandon.  Government officers should not focus on the duration of stay in determining whether the individual has proven the intent to return to the home country, but rather examine the B-2 applicant's ties abroad and the likelihood of stay in the U.S. unlawfully after the "principal" nonimmigrant visa holder departs.

The Accompanying Partner Must Not Intend to Work

Using B-2 visa status is considered travel for pleasure.  An accompanying B-2 partner must not intend to work in the United States.  If the accompanying partner intends to work, they will need a temporary work visa that permits such planned activity.

The Couple Must Be Able to Document the Long-Term Nature of the Relationship

B-2 derivative status is granted to "members of the household of another alien in long-term nonimmigrant status."  The U.S. Department of State envisions this visa for established family relationships. Applicants may need to demonstrate the length or their relationship and that they have intermingled finances in order to prove that they are a household.

Government officers may consider the strength of the relationship of the applicant with the "principal" nonimmigrant visa holder and the latter's own ties abroad.  For example, a B-2 applicant who is part of a couple together for many years and with strong ties to their home country would normally qualify.  Conversely, a partner who only recently entered into a relationship with a nonimmigrant visa holder and has weak ties to the home country may have greater difficulty qualifying.

Comparison with Other Countries

Although the U.S. Department of State shows some flexibility, other countries offer even greater benefits to accompanying partners on non-immigrant visa holders.  In Canada, for instance, legally married spouses, common law partners (one year of shared living) and same-sex couples enjoy the same rights.  In all three situations, the partner or spouse of a work permit holder may obtain an authorization to work and/or study in Canada valid to the same date as the work permit holder's permit. Couples must establish that they fall in one of the stated relationships.

In France, however, unmarried partners of nonimmigrant visa holders wishing to accompany them are treated similarly as in the United States.  Most procedures allowing family members to accompany a principal visa holder are reserved to married couples.  The "civil pact of solidarity" (PACS), a form of civil union between two adults (same-sex or opposite-sex) for organizing their joint life, does not afford the same rights as a traditional marriage. A partner may be allowed to accompany a principal visa holder if the couple can document their life together, but the accompanying partner will not be allowed work in France under that status.

Hong Kong, which does not recognize same-sex unions and bans gay marriages, has recently started giving dependents in a gay relationship extended visitor's visas to remain in Hong Kong while their working partner is employed in the territory.  If the couple can present strong evidence that they are in a genuine long term relationship that will continue, the visa is very likely to be approved. This visa, however, does not allow the holder to do any volunteer or paid work.

Impact on US Immigration

While B-2 status is available to members of a households, it is lost if the principal immigrates.  Partners and other household members of green card applicants may not use B-2 status in order to stay in the United States after the principal immigrates.

There is currently no solution for partners of U.S. citizens and permanent residents.  While heterosexual couples may decide to legally marry in order to allow the foreign spouse to immigrate, the Defense of Marriage Act has been cited as authority to keep same-sex couples from receiving the same benefits.  

Affected couples should keep alert, however, as this area of the law is evolving rapidly. Members of Congress recently asked Homeland Security officials to hold off rejecting immigrant petitions by gay couples until courts determine the constitutionality of the Defense of Marriage Act.  In June 2011, Immigration and Customs Enforcement officials in New Jersey called off the deportation of a Venezuelan man who legally married his same-sex partner in the United States.  Although officials said they would continue to enforce the law as it remains in effect, the administration exercises discretion on a case-by case basis.

Conclusion

Notwithstanding the solution offered by the B-2 visa to unmarried couples, it remains limited in comparison to the advantages provided by derivative status afforded to traditionally married couples in the United States. Heterosexual couples may decide to legally marry in order to enjoy the full benefits of derivative status under certain nonimmigrant visa categories.  For example, the spouse of an L-1 intracompany transferee may seek admission under L-2 status and apply for work authorization.  In addition under current law, marriage is required in order to immigrate based on a spouse's status as a U.S. citizen or green card holder.

Source: Baker McKenzie - GAI

For more information or to contact Baker McKenzie, please click here.





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