Dual Foreign-national Couples
The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.
Last updated: June 3, 2020
Dual foreign national couples are couples in which both partners are not citizens of the United States. Under U.S. immigration law, there is recognition for dual foreign national married couples where one spouse holds a long-term nonimmigrant visa.
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.
Derivative visas require there to be a spousal relationship, so an unmarried partner would not be able to qualify. Currently, the Department of State does not recognize domestic partnerships or civil unions as the legal equivalent of marriage, so these relationships similarly are not enough to qualify for derivative visas.
It is important to note that marriage does not automatically entitle a spouse to a derivative visa. Marriage allows the spouse of a U.S. visa holder to apply for a derivative visa, for which they will still need to independently qualify. It does not automatically guarantee that they will receive a visa.
A spouse’s derivative visa should be valid for the duration of the principal visa holder’s status, allowing the couple to remain together in the U.S. for as long as the primary visa holder remains in that status. If the primary visa holder falls out of status, or has their status revoked, the derivative visa holder also has their status revoked, or they fall out of status. Some derivative visas allow a spouse to work, others do not.
Since most countries in the world do not have marriage equality, many domestic partners would not be able to apply for derivative visas. However, even without a formally recognized relationship, like a marriage or civil union, if a foreign national obtains a non-immigrant (temporary) visa, their partner, to whom they are not married, can apply for a B-2 “cohabitating partner” visa to come to the U.S.
The B-2 “cohabitating partner” visa is available to unmarried partners of foreign nationals who hold visas in the following categories: A; E; F; G; H; I; J; L; M and TN (NATO). Although for example, one partner’s H-1B status makes their partner eligible to apply for a B-2 “cohabitating partner” visa, that partner must still independently qualify for a B-2 visa. This means that they must prove to U.S. immigration officials that their intent is not to remain in the U.S. permanently. Thus, they must prove that they have strong ties to their 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.
Even if someone does obtain a B-2 “cohabitating partner” visa, just like any other B-2 visa, they would not be allowed to work in the United States. The visa allows someone to come to the U.S. for “pleasure,” but not to earn money in the United States.
When someone initially enters using the B-2 “cohabitating partner” visa, they can request up to one year of lawful stay. Regardless of the validity of their initial B-2 “cohabitating partner” visa, they can seek extensions in six month increments from the Department of Homeland Security for the duration of the principal alien’s nonimmigrant status. Please see here for more information.
The B-2 “cohabitating partner” visa 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, it is not only limited to same-sex couples. 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.
It is important to note that the Department of State envisions the B-2 “cohabitating partner” visa for longer-term relationships, and so applicants may need to demonstrate 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 their home country to prove that they intend to return to there at the end of the B-2 visa.
Guidance for cohabitating partner visas is available online at the Department of State website at State Department Memo July 2001. Additionally, in August 2011, USCIS added guidance on how cohabitating B visa holders can apply to extend their authorized stay in the U.S. under this category. Should a consular officer not be familiar with this visa, refer them to these source materials.
The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.
