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 the advice of an expert; 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 a spouse to a derivative visa?
No, 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.
How long will a derivative visa be valid?
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.
Can a spouse work in the U.S. on their 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. 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.
We’re from a country that doesn’t have marriage equality or any form of relationship recognition for same-sex 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, their 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 for example, one partner’s H-1B status makes their spouse eligible to apply for a B-2 “cohabitating partner” visa, that spouse 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.
If someone receives a B-2 “cohabitating partner” visa, can they work in the U.S.?
No, this B-2 visa is like any other B-2 visa in that regard. It allows someone to come to the U.S. for “pleasure,” but not to work.
Does B-2 “cohabitating partner” status allow someone to remain in the United States for the duration of their partner’s visa?
No, when someone initially enters using the visa, they can request up to one year of lawful stay. After that they 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 B-2 “cohabitating partner” visa applicants have to prove that their relationship with their partner is long-term?
The Department of State envisions this 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.
Is there any authority to cite for these rules if a consular officer is not familiar with this?
Yes, 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.