Dual foreign national couples are couples in which both partners are from outside the U.S. Under U.S. immigration law, there is some, limited recognition for dual foreign national couples, although there is no recognition for couples where one partner is a citizen.
Temporary Visas For Cohabiting Partners
of Foreign Temporary Workers
What is the B-2 classification for cohabiting partners?
Under U.S. immigration law, there is only one context in which same sex relationships are recognized. If a foreign national obtains a non-immigrant (temporary) work visa, his or her partner can apply for a B-2 visitor visa to come to the U.S. with the foreign worker.
What categories of visa holders are eligible to bring their partners on B-2 visas?
The B-2 “cohabitating partner” visa is available to partners of foreign nationals who hold visas in the following categories: A; G; NATO; F; J; M; E; H; I; and L.
So, if, for example, my partner has an H-1B visa, is it automatic that I can come to the U.S. with her?
Nothing in immigration is automatic. Although your partner’s H-1B status makes you eligible to apply for a B-2 visa, you must still independently qualify for a B-2 visa. This means that you must prove to U.S. Immigration that your intent is not to remain in the U.S. permanently. Thus you must prove that you still have strong ties to your own country such as owning real estate, having secure employment, and/or having strong family ties. This can get complicated when the principal visa holder (in this example, the H-1B) plans to be in the U.S. for three to six years and is not required to maintain a foreign residence.
If I get the B-2 visa, can I work in the U.S.?
No, this B-2 visa is like any other B-2 visa, it allows you to come to the U.S. for “pleasure,” but not to work. Even though this area of immigration law gives some acknowledgement to lesbian and gay relationships, same sex couples are still worse off than their opposite sex, married counterparts, because spouses can accompany their partners with work visas and obtain work authorization themselves.
Does my B-2 last for the duration of my partner’s visa?
No, initially you can apply for a one year B-2 visa. After that you can apply for extensions in six month increments.
Is this “cohabitating partner” visa only available to same sex partners?
No, it is potentially available to “aliens who are members of the household of another alien in longterm nonimmigrant status but who are not eligible for derivative status under that alien’s visa classification.” Thus, for example, the elderly parent of a foreign national could apply to come to the U.S. with a child on a long term non-immigrant visa.
Do I have to prove that my relationship with my partner is long-term?
The Department of State envisions this visa for established relationships and family relationships, so you may need to demonstrate the length or your relationship and that the two of you have intermingled finances (for example owning property together.) As mentioned above, it is very important for the B-2 applicant to maintain strong ties to the home country which prove that she or he intends to return to the home country at the end of the B-2 visa.
Is there any authority I can cite for these rules if my consular officer is not familiar with this?
Yes, guidance for these visas is available on line at the Department of State website at State Department Memo July 2001.
Additionally, in August 2011, USCIS added guidance on how co-habiting B visa holders can apply to extend their authorized stay in the U.S. under this category.