For same-sex couples wishing to travel or spend time in the United States, there are legal avenues available. Here is detailed information on how same-sex partners can join temporary visa holders, along with a list of temporary visas and explanations for how same-sex visa holders can travel to the U.S.
Understanding the Legal Landscape: Same-Sex Visa Holders
The sitting U. S. Supreme Court left the country with fewer standard provisions within the Defense of Marriage Act (DOMA) – effectively redefining marriage within the United States based on gender. This historic ruling allowed the spouses in the marriage between two people of the same gender to have the same perks as the opposite-gendered ones about immigration. This was a crucial turning in the fight for LGBTQ+ rights of the American population.
For those to know about the immigration rules and regulations for the green card or visa for the same spouse, the Nolo’s section of the LGBTQ Rights and U. S. Immigration Law is a great help.
But it is important to realize that these new rights are compliant with being legally married to someone of the same sex only. That then brings us to the question of what choices couples in a domestic partnership or civil union have to travel to the United States collectively on a non-immigrant, short-stay visa.
Derivative U.S. Visas for Married Same-Sex CouplesSame-Sex Visa Holders
There is a possibility that the use of a “derivative visa” can ease this process as these visas are extendable to legally recognized same-sex and opposite-sex partners. Derivative visas often reflect the same letter code as the visa of the principal applicant. Overall, to obtain a derivative visa, the spouse is required to provide a valid marriage certificate and other necessary documents, which takes about seven working days as mentioned above.
For instance, if the primary visa holder is an F-1 student, they can bring their F-2 spouse with them. Notably, the F-2 visa’s validity period matches that of the F-1 visa, and in some cases, the derivative spouse may be allowed to work in the United States.
Steps to Apply for a Derivative Visa
1. Eligibility Verification
- Ensure that you are legally married to your same-sex partner, as only legally recognized marriages qualify for derivative visas. Civil unions or domestic partnerships do not meet this requirement.
2. Gather Required Documentation
Collect the necessary documents, including:
- A valid marriage certificate.
- Proof of the primary visa holder’s status (e.g., copy of their visa).
- Evidence of the relationship (e.g., joint bank accounts, shared lease agreements).
- Any additional documentation required for the specific visa category.
3. Complete the Visa Application
- Fill out the appropriate forms based on the primary visa type:
- For example, if the primary visa holder is on an H-1B visa, you would apply for an H-4 derivative visa.
- Ensure all forms are completed accurately to avoid delays.
4. Submit the Application
- Submit the application along with all supporting documents to the appropriate U.S. consulate or embassy if applying from abroad, or to USCIS if already in the U.S..
5. Attend an Interview (if required)
- Prepare to attend an interview at a U.S. consulate or embassy, where you may answer questions about your relationship and marriage.
6. Await Processing
- After submission, wait for the visa application to be processed. Processing times can vary based on the type of visa and other factors.
7. Receive Decision
- Once processed, you will receive a decision regarding your derivative visa application. If approved, you will be granted a visa that allows you to accompany your spouse in the U.S.
Exploring Options for Unmarried Couples
As noted above, certain types of partnerships and civil unions receive legal recognition domestically but do not have the same status as marriage for immigration purposes. Therefore, if you and your partner have not committed to formally marrying, your partner cannot obtain a visa to enter the U.S. based on your immigration status. Alternative routes may be available.
Option 1: Marriage in a Same-Sex Marriage-Friendly Location
To be on the safe side, try to wed your partner in a state or country that recognizes and performs same-sex wedding ceremonies. After this, some recognized standard procedures will allow you to get a derivative visa for your partner. Though this is a feasible idea, it might not work for all parties because of distance at long distances.
Option 2: Applying for a B-2 Tourist Visa
As for the unmarried partners, out of which some can be of the same gender and others opposite, the registration for a tourist visa, or to be precise B-2 pleasure visa, seems like a quite viable option. We must also clarify that like any other visa, the B-2 visa does not allow working or seeking employment in the United States.
The B-2 Visa: Other Information
Typically, the B-2 visa grants an initial entry for a maximum stay of one year. After this period, the visa holder can renew their visa, which may be issued for up to six months through USCIS.
To apply for a B-2 visa, your partner must meet the following eligibility requirements:
- To further verify that you and the subject are indeed cohabitants, you must prove that you live in the same household. This can be in the form of a lease, deed or rent receipts, utility bills; or anything that you both have filled with your names at the same address.
- Set the nature of your relationship as long-term, and ensure its genuine nature. Other than title deeds, you may provide letters or messages exchanged, photos, or any other forms of documentation as proof of your partnership.
- Prove strong ties to your home country, signaling an intention to return after the visit. This can be challenging when applying for a more extended stay, but evidence such as family members residing in your home country or the existence of a job or residence can help bolster your case.
Overcoming Unique Challenges
Applying for a B-2 visa is not without its challenges. Consular officers must be convinced that the applicant genuinely intends to visit for pleasure, not to work or settle permanently in the United States.
Thankfully, the U.S. Department of State (DOS) issued a memo in 2001 that clarified this issue. Accompanying a “significant other” who is temporarily working or studying in the U.S. qualifies as travel for pleasure. To allay concerns about overstaying, the DOS emphasized that consular officers should focus on the applicant’s ties abroad and the likelihood of their returning home when the principal visa holder departs.
In essence, as long as your relationship is close and genuine, an extended stay in the U.S. is permissible, provided you leave together.
The B-2 Visa Application Process for Same-Sex Visa Holders
Paperwork: Fill out the necessary paperwork and gather documentation that proves eligibility.
Documentation: As mentioned earlier, you should compile documents demonstrating shared residence, the authenticity of your relationship, and ties to your home country.
Interview: Attend an interview at a U.S. consulate in your home country.
In cases of cohabiting same-sex partners, pay particular attention to the documentation, as it plays a pivotal role in establishing your eligibility for the B-2 visa.
Extending the B-2 Visa
Once you and your partner are in the United States, keep in mind that you may have different visa expiration dates. You can access your Form I-94 on the Customs & Border Protection (CBP) website, which specifies your departure date. The initial B-2 visa is typically valid for one year. Before this expires, the B-2 visa holder must apply for extensions through USCIS using Form I-539.
Derivative Visa Types and Work Authorization
Derivative Visas for Married Couples:
- Same-sex spouses of primary visa holders (e.g., H-1B, L-1, F-1) can apply for derivative visas (like H-4 or L-2) that typically allow them to work in the U.S.
- For instance, H-4 visa holders can apply for an Employment Authorization Document (EAD) under certain conditions, allowing them to work legally
Nonimmigrant Visa Holders:
- If the primary visa holder is on a nonimmigrant visa that allows for derivative status, the spouse may also qualify for work authorization depending on the specific visa rules.
- For example, F-2 visa holders, who are derivatives of F-1 students, generally cannot work in the U.S., while L-2 and H-4 visa holders can obtain work authorization.
Navigating the U.S. immigration system as a same-sex couple can be a complex endeavor, but it’s entirely possible to make your dreams a reality. Whether through derivative visas or B-2 tourist visas, there are legal pathways for partners to accompany temporary visa holders to the United States. By providing comprehensive documentation and demonstrating the authenticity of your relationship, you can enjoy your time in the U.S. and return home together, all while celebrating your love.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your travel to the United States straightforward and successful. Whether you’re applying for an H-1B Visa or an E-2 Visa, we handle every step—from preparing your application to gathering the required documents.
Our Immigration Consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process and coordinate with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients secure the visas/permits they need to visit the United States. Call us today at +234 812 5505 986 to learn how we can assist you.
