Dual foreign national couples are couples in which both partners are from outside the U.S. Under U.S. immigration law, there is recognition for dual foreign national married couples where one spouse holds a long-term nonimmigrant visa.
General information, such as that provided below, does not constitute individual legal advice nor is it meant to take the place of individualized legal advice; however, we do hope to answer some of the questions we hear most often. You should always consult with a qualified immigration attorney about the individual facts of your case before making any decisions about your particular situation.
What categories of visa holders are eligible to bring their spouses to the U.S. on derivative visas?
Derivative visas (for spouses and children of the principal U.S. visa holder) are available in the following visa categories: A, E, F, G, H, I, J, L, M, O, P, R, S, T, TN (NATO), and U.
Will our marriage automatically entitle my spouse to a derivative visa?
No, your marriage allows your spouse to apply for a derivative visa, for which s/he will still need to independently qualify. It does not automatically guarantee that s/he will receive a visa.
How long will my spouse’s derivative visa be valid?
Your spouse’s visa should be valid for the duration of your visa, allowing the two of you to remain together in the U.S. for as long you remain in that status.
Can my spouse work in the U.S. on his/her derivative visa?
In most cases, derivative visa holders are not eligible to work in the United States. The only exceptions are in the A, E, J, and L visa categories, and there are different procedures for applying for work authorization in each category.
We’re not married. Can my partner get a derivative visa?
Derivative visas require there to be a spousal relationship, so an unmarried partner would not be able to qualify. However, the answer is less clear if you’ve entered into in a domestic partnership or civil union, and we hope to have guidance from the Administration on this soon.
We’re from a country that doesn’t have marriage equality or any form of relationship recognition for lesbian and gay couples. Is there any way that my partner can accompany me to the United States?
Yes, even without a formally recognized relationship like a marriage or civil union, if a foreign national obtains a non-immigrant (temporary) work visa, his or her partner can apply for a B-2 “cohabitating partner” 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 “cohabitating partner” visas?
The B-2 “cohabitating partner” visa is available to partners of foreign nationals who hold visas in the following categories: A; E; F; G; H; I; J; L; M and TN (NATO). Although your partner’s H-1B status makes you eligible to apply for a B-2 “cohabitating partner” 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 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 visa holder) 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 “cohabitating partner” 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.
Does my B-2 “cohabitating partner” status allow me to remain in the United States for the duration of my partner’s visa?
No, when you initially enter using the visa, you can request up to one year of lawful stay. 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 long-term 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 other evidence of an established relationship such as intermingled finances or owning property together. As mentioned above, it is very important for the B-2 applicant to maintain strong ties to the home country to prove that they intend 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?