The U.S. Supreme Court recently overturned key provisions in the Defense of Marriage Act ("DOMA"), a law that defined marriage as between a man and a woman. As a result, married same-sex couples are now entitled to the same immigration benefits as opposite-sex ones. For more information on applying for a green card, fiance visa, or derivative visa for your same sex spouse, see Nolo's section "LGBT Rights and U.S. Immigration Law."
However, these new rights apply to married same-sex partners only. What happens if you have a domestic partnership or civil union and you want to come to the U.S. on a temporary visa and have your partner come with you? In this case, if you are a foreign national who will be coming to the U.S. on a short-term visa, there may be a way for your same-sex partner to come to the U.S. along with you -- even if you're not married. And it’s completely legal and above board, in line with guidance provided by the U.S. Department of State (DOS).
Derivative Visas Are Now Available to Married Same-Sex Couples
Thanks to DOMA's defeat, if you are a couple in a legally recognized "marriage," (either same-sex or opposite-sex), you can apply for what is known as a derivative visa so that your spouse can come along with you. Nonimmigrant visas virtually always permit the spouses to obtain what’s called a derivative visa, usually with the same letter designation as the primary visa applicant. The spouse simply needs to show a marriage certificate along with the usual application documents. An F-1 student, for example, may obtain an F-2 visa for an opposite-sex spouse. Better yet, the F-2 will last for the same length of time as the F-1 visa. In some cases, derivative spouses are allowed work in the United States.
Unmarried Couples Can Apply for a B-2 Visa Instead of a Derivative Visa
Unfortunately, even legally recognized civil unions and domestic partnerships will NOT be treated the same as marriage for immigration purposes. Therefore, if you have not yet married your partner, your partner won't be eligible for a derivative visa. You have two options at this point. You can either:
- marry your partner in a state or country where same-sex marriage is legal and apply for a derivative visa for your partner, or
- your partner can apply for a tourist visa to accompany you to the United States.
The first option may not be feasible for many foreign same-sex couples because you may have to travel a long distance in order to get married in a country where same-sex marriage is legal. The good news is that there is a second-best option for unmarried partners, whether they are in a same-sex or an opposite-sex relationship. It involves applying for a tourist visa, also known as a B-2 visa for pleasure purposes. The B-2 does not allow work in the United States.
An initial B-2 visa can be granted for a stay of up to one year, after which its holder will need to apply to U.S. Citizenship and Immigration Services (USCIS) for extensions of up to six months at a time. In order to obtain the B-2, your partner will need to prove that the two of you are part of the same household, as well as meet the other eligibility criteria described in “A B-2 Visa for Visiting the U.S. as a Tourist: Do You Qualify?”
The visa categories that the State Department has expressly recognized as allowing B-2 visas for cohabiting partners include:
- A, G, and NATO (diplomats and foreign government officials)
- F (academic students)
- J (exchange visitors)
- M (vocational students)
- E (treaty trader or investors)
- H (various temporary workers, such as H-1B specialty occupation workers and H-2B seasonal workers)
- I (media, journalists)
- L (intracompany transferees)
- O (foreign nationals with extraordinary ability in the sciences, arts, education, business, or athletics), and
- R (clergy and religious workers).
Overcoming Unique Challenges in Proving B-2 Eligibility
The B-2 eligibility criteria require, in sum, that the applicant be coming to the U.S. solely for pleasure, plan to stay for a limited, specific period of time (NOT permanently), and have a foreign residence to return to. Many tourist visa applicants are rejected every day because the consular officer reviewing the application suspects that the person actually wants to come to the U.S. to work or settle permanently.
Fortunately, the DOS issued a memo in 2001 stating that “Accompanying one’s ‘significant other’ who is temporarily working or studying in the U.S. would be considered travel for pleasure.” And to allay consular posts’ concerns about applicants intending to stay in the U.S. a long time (which normally would be a red flag indicating a desire to stay permanently), the DOS added that consular officers should, in this type of case, focus on the “B-2 applicant’s ties abroad and the likelihood that he/she would stay in the U.S. illegally after the ‘principal’ alien departs.” In other words, staying a long time in the U.S. is okay as long as your relationship is so close that you’ll also surely leave the U.S. together.
B-2 Application Process for Same-Sex Partner
Applying for a tourist visa involves filling out some paperwork, gathering documentation to prove that the applicant meets all the eligibility criteria, and attending an interview at a U.S. consulate in the applicant’s home country. For details, see “Application Process for a B-1 or B-2 Visitor Visa.” In a case of cohabiting, same-sex partners, the B-2 applicant should pay extra attention to collecting documents proving that:
- the two of you are part of the same household (such as a copy of a lease, deed, or rent receipts, and utility bills or other mail showing that both your names are associated with the same address)
- your relationship is well established (in addition to any property ownership documents, copies of letters between you two, photos, and more will help show that this isn’t a relationship of convenience designed to gain the B-2 applicant entry to the U.S.)
- the B-2 applicant has strong ties to the home country that will impel return there (a challenge when applying to stay in the U.S. a long time, but important to try to satisfy, for example with evidence that other family members still live in the home country or that the applicant has a home or job to return to).
Extending the B-2 Visa
Once you are in the U.S. together, you’ll need to remember that you’re on different visa schedules, as covered in "How Long Will Your U.S. Visa Allow You to Stay?" Upon U.S. entry, you can access your Form I-94 on the Customs & Border Patrol website, which will show the date by which you must depart. The B-2 holder’s first I-94 will likely show an expiration date of one year. Before that year is up, he or she will need to apply for an extension on USCIS Form I-539.