If I’m on an H-1B visa, can my same-sex spouse get a U.S. visa too?

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Question:

I’m in the U.S. on an H-1B visa, in a long-distance relationship with another man, from my home country of the Netherlands. We are planning to marry there, in a few months. Will I then be able to get him a visa to accompany me to the United States?

Answer:

Yes, assuming there aren’t any complications in your case (such as your new spouse being inadmissible to the U.S. for such reasons as having a communicable disease or a record of crimes, security, or immigration violations, or past unlawful presence in the U.S.), you should be able to obtain a derivative visa for him.

U.S. immigration law now recognizes same-sex marriages in the same way it recognizes opposite marriages. If they are legal in the state or country where they took place, and you can prove the fact that you are legally married, then same-sex spouses may obtain derivative visa to the United States. The H-1B as well as most other nonimmigrant (short-term) visas come with the opportunity for spouses (and children) to apply for derivative visas.

For the H-1B, the derivative is known as an H-4. It allows your spouse to  spend the same amount of time in the U.S. as you do, study at a U.S.  school or university, but NOT to work in the United States. Be sure to obtain a certified copy of your marriage certificate for the H-4 visa application process.

Actually, even before the U.S. Supreme Court’s Windsor decision, which opened the way to immigration rights for same-sex couples, it was possible for same-sex spouses and partners to spend some time with the primary U.S. visa-holder by obtaining a visitor visa. The disadvantage to that is that they allow stays in the U.S. of only six months at a time, after which the person must apply for an extension.

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