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.
My partner and I aren’t ready for marriage, but we’d still like to be together in the United States. What are the best ways for her to come to the United States?
A marital or fiancé/e relationship is required in order to directly sponsor your partner for an immigration status. Apart from these relationship-based options, your partner would have to qualify independently for a visa. Below, we offer some very basic information about alternate possible ways to obtain permanent or temporary immigration status in the United States. Immigration law is very complicated and each of these visa types, involve a sub-specialty of the law. Therefore, what follows is intended as a broad overview, but we strongly recommend that you and/or your partner meet with a qualified LGBT friendly immigration attorney to discuss all possible options that could work in your specific circumstances. Please contact us if you would like contact information for private, LGBT friendly immigration attorneys in your area.
Are there other ways for my partner to get a green card?
In order to become a U.S. citizen (“USC”), a foreign national must first be a lawful permanent resident (“LPR”). There are primarily five paths to becoming an LPR:
1. Family-based immigration – having a USC or LPR family member sponsor you. Only spouses, adult children, parents or siblings can potentially sponsor their family members.
2. Employment-based immigration – having an employer sponsor you. The basic premise is that foreign nationals who can benefit the U.S. labor market and who are needed to fill jobs that can’t be filled by Americans, may be able to be sponsored to get LPR status.
3. Asylees and refugees – foreign nationals who have been granted asylum or refugee status can apply to become an LPR in the U.S. Asylees are foreign nationals who have fled their countries, come to the United States, and proven to the U.S. Immigration Service that they have a well-founded fear of persecution in their country. Refugees have fled their countries and applied for refugee status with the U.N. High Commissioner for Refugees or through the refugee system of another country. You can read more about applying for asylum based on being LGBT here.
4. Diversity Visa Lottery – every year, in the late fall or early winter, the U.S. Department of State runs a lottery which grants up to 55,000 visas to individuals from countries which are considered under-represented in our immigration system. If you are from one of these countries and have at least a high school degree or two years of work experience within the past five years in an occupation requiring at least two years’ training or experience, you can apply for free online during the period that registration is open. Entering the lottery is free.
5. Miscellaneous, country-specific programs – foreign nationals from Cuba can generally apply for LPR status one year after being admitted into the U.S. In the past there have been similar, humanitarian-based legalization programs for Haitians (HRIFA) and certain Central Americans and Eastern Europeans (NACARA). Other than Cubans, however, the date to apply for relief under these humanitarian programs has passed.
It sounds really hard to get a green card; can my partner just come here temporarily?
While it is easier to come here temporarily than permanently, it can still be difficult to get even a temporary visa, especially if your partner comes from a country which is less economically developed than the United States. Temporary visas to the United States are called non-immigrants visas (“NIVs”). There are many different NIV categories but the most common NIVs are described briefly here:
Tourist Visa (B1/B2) – Foreign nationals can apply for these for limited stays in the U.S, either to visit or to conduct business (such as meeting with business associates), but may not use this visa to work. The tourist visa can be issued for a single entry or for multiple entries over a period of time (often ten years.) A tourist visa applicant must demonstrate to the U.S. consulate in the home country that she does not intend to remain in the U.S. permanently. The consulate will look at whether she has strong enough ties to her home country that she would not be likely to overstay once she gets to the U.S. These ties can include: owning property, having a good job, being enrolled in school, having close family ties, etc. Generally, the better off economically the country and the individual visa applicant are, the more likely that she will be able to get a visa. Getting a tourist visa gives the foreign national the ability to board a plane to the U.S. She still must go through inspection at the U.S. airport or land border and must, again, convince the inspector at the airport or border that she does not intend to remain in the U.S. permanently. If she is allowed into the U.S., she will be given a stamp in her passport with a date by which time she must leave the U.S. Customs and Border Protection is no longer issuing paper I-94 documents to foreign nationals upon entering the country, but this information, including the date one’s authorized stay ends, can be accessed online. If she doesn’t leave by that date, she risks having her visa cancelled in the future. Even if she always complies with the terms of her entry and never overstays, at some point, if a border official or airport inspector believes she has been spending too much time in the U.S., she may be denied entry. Some officers issue a warning that this will be the last time the person will be admitted for some time. Other officers simple return the traveler back to her home country.
Visa Waiver Program (“VWP”) Entering under the VWP is very similar to entering with a tourist visa. Only citizens of certain countries which the U.S. deems unlikely to overstay can enter under the VWP. Although the foreign national does not need to apply for a tourist visa, VWP entrants must comply with ESTA before entering. VWP Entrants must still be inspected and admitted at the airport or at the border, and if the inspector believes he has been spending too much time in the U.S., he can deny the foreign national entry and force him to apply for a tourist visa in the future. Also, VWP entrants waive certain benefits that people who enter with visas can get, such as the ability to apply from within the U.S. to extend or change visa status (with certain limited exceptions for married couples or asylum seekers). VWP entrants authorized stay is capped at 90 days per entry. It is possible for citizens of VWP countries to obtain a tourist visa, but they generally must explain to the U.S. consulate why they can’t complete their tourism or business within 90 days.
Student Visa (F1) – Foreign nationals who are admitted as full-time students to accredited U.S. schools can apply for a student visa. Student visas can be granted for an unspecified period of time (remaining valid so long as the student is enrolled in her course of study), or may be for a specific limited period of time, particularly if the applicant seeks to come to the U.S. for a short-term language course. Student visa applicants, like tourist visa applicants, must prove that they do not intend to remain in the U.S. after their visa expires by showing strong ties to their home countries. They also must demonstrate that they have enough money to pay for school in the U.S. and live here without having to work illegally. DHS has launched a website with information on student visas called Study in the States.
Optional Practical Training (“OPT”) – After a student graduates from an approved course of study, he may be eligible to remain in the U.S. for another year, obtain work authorization, and work or intern in a field related to his course of study. This is often an important interim step to finding an employer to sponsor the foreign national for a longer term non-immigrant work visa.
Trainee (J) – The J-1 visa is a trainee visa. It is a short-term visa that permits an individual to visit the U.S. temporarily for a period of 12 months to 2 years depending on the nature of sponsoring program. Similar to the temporary visitor, student and TN visa applicant, to obtain a J-1 visa you must prove to the consulate and border officer that you have a foreign residence that you do not intend to abandon. In addition, for some programs, there is a two year home residency requirement, which means you must return to your home country for two years upon completion of your U.S.-based training before becoming eligible to apply for a green card or some work visas. This is generally the case for individuals whose 1. training program has been sponsored by certain international organizations such as the Organization for American States or Fulbright, 2. when the individual is obtaining skills that are in short supply in the home country or 3. if the visitor is a graduate of an international medical school participating in an internship, residency or clinical training in the U.S. sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG). Waivers of the two-year home residency requirement can be secured in some instances.
Skilled worker visa (H-1b) — The H-1b visa is an employer driven visa, which means an employer must file a petition to sponsor the foreign worker. To obtain an H-1b visa requires a two-step process. First, the employer files a Labor Condition Application (LCA) with the Department of Labor. The LCA contains basic information about the job offer and the proffered wage, which must be at or above the prevailing wage for the job in the geographic area where the visa holder would work. Once approved, the employer files the H-1b petition including petition forms, employer letter of support, proof of the employee’s credentials for the job (like a copy of their degree) and other supporting documentation with the U.S. Citizenship and Immigration Service (USCIS). The main crux of the H-1b petition is to demonstrate that the worker is performing work in a “specialty occupation” defined as requiring theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S. If approved, an H-1b work visa is typically given for an initial period of 3 years with the possibility of extending it for another 3 year period for a maximum of 6 years total. USCIS issues 65,000 new H-1b visas every fiscal year. Some employers are exempt from the cap, including universities and other non-profits that engage in research.
NAFTA visa for professionals (TN) – Canadian and Mexican nationals with a bachelor’s degree are eligible to apply for this visa. TN visa holders cannot be self-employed in the U.S. but they can work for a company in which they have a controlling interest and they can also work part-time. There is a list of qualifying professions found here. There are many professions which are eligible for TN visas, including graphic designers, engineers, lawyers, and physicians, among many others.
TN visas are similar to the H-1B visa, in that they are only available to individuals with specialized knowledge, which generally means someone with the equivalent of a bachelor’s degree. However, the two visa categories are different in several ways. First, TN visas are only available to Mexican and Canadian nationals. Also, a TN applicant does not have to obtain an approved petition for Labor Certification Application (LCA). Canadians can apply at the U.S. Canadian border, but Mexicans are required to obtain a visa at the consulate. Unlike the H1B visa, there is no numerical cap for TN visas and an individual in TN status can renew this visa yearly, for an indefinite period of time. One area where the TN is dissimilar and also perhaps less desirable than the H-1B visa is that in applying for a TN visa, you must show that you do not have the intent to remain in the U.S. permanently.
When you enter the U.S. on a TN visa, your I-94 will display a TN designation and your initial entry can be for up to three years. You can apply for an extension of the TN visa using the same form used for the H-1B visa extension. As noted above, there is no limitation on the number of years TN status may be granted.
Extraordinary ability (O) – The O-1 visa is for individuals who have “extraordinary ability in the sciences, arts, education, business or athletics.” Extraordinary ability is demonstrated by sustained national or international acclaim. If you have attended top-tier schools, published articles in trade publications in your field, given lectures, produced original scientific or scholarly work of major significance, been awarded prizes or recognition for outstanding achievement, and commanded a high salary in relation to others in the field then you may be eligible for an O-1 visa. Typically, an O-1 visa applicant will include an employer’s letter of support to bolster the application. The O-visa is like the H-1B visa in that you can have the intent to work here temporarily under the O-visa but also the intent to permanently remain in the United States. The first O-1 visa is generally issued for a period of 3 years, which can be continually renewed in one year increments for as long as there is a position.
Why do some of these visas require foreign nationals to prove that they don’t intend to remain in the U.S. permanently?
Many nonimmigrant visas are subject to Section 214(b) of the Immigration and Nationality Act (INA), which creates a legal presumption that the foreign national is an “intending immigrant”, that is that she intends to remain in the U.S. permanently. To overcome the presumption of immigrant intent, a foreign national must show that they have strong ties to their home country (such as family, a good job, real estate, school enrollment) that it is not likely they would want to remain in the U.S. beyond the period of time the U.S. grants them. The less economically developed the applicant’s country of origin, the more difficult it is to overcome the presumption of immigrant intent.
Conversely, if Immigration believes that you have a strong incentive to remain in the U.S., because, for example, you are in a committed relationship with an American, this can also be grounds to deny a non-immigrant visa.
I am applying for (or traveling to) the U.S. on a visa that is subject to INA Section 214(b). What kinds of evidence do I need to present to the relevant immigration official to show I do not have immigrant intent?
For practical purposes, all of the above visa categories that have an INA 214(b) requirement to demonstrate the individual has a “foreign residence that they do not intend to abandon” do not actually require evidence of an independent residence abroad. Instead, the test is an objective one, and the applicant for a visa or a visa holder seeking entry to the U.S., must satisfy the officer that they have strong ties to the home country, including family, employment, property and social/community ties. As we have always advised, evidence of a long-term, committed relationship or marriage to a U.S. citizen or legal permanent residence is considered evidence of immigrant intent.
My partner is in the U.S. without lawful status; does any of the above still apply?
Not really. The U.S. has very harsh laws which say that once a person is here without legal status, with very few exceptions (immediate relatives of USCs and asylees) they cannot change from being here without status to being here with status from within the U.S. Making matters worse, if the person leaves the U.S., they may be subject to a bar of 3 years if they’ve been here unlawfully for more than 6 months, or 10 years if they’ve overstayed for more than a year. However, now that DOMA has been declared unconstitutional, U.S. citizens can sponsor their lesbian and gay spouses for lawful permanent residence. Being married to a USC is one of the few circumstances in which U.S. immigration law “forgives” the unlawful presence of the foreign national spouse.
However, if your partner entered without inspection (“EWI”), generally by crossing the border, then the situation is more complicated. Even immediate relatives of USCs cannot legalize their status from within the U.S. if they entered EWI, meaning they’d have to apply for an immigrant visa through a U.S. consulate abroad. It’s possible for someone who would otherwise be eligible to apply for a green card to apply for a waiver to forgive their unlawful presence. This waiver application can be processed from within the U.S. before the foreign partner returns to their home country to complete the immigrant visa process. Please see our FAQ for more information on this waiver.