One of the ongoing aspects of the H1B visa program is the ability to sponsor spouses and dependents with an H-4 visa. While this is well known, the question does come up for LGBT families of whether a same-sex partner would qualify for an H-4 under existing rules.
Overview of the H-4 Spousal Visa
The H-4 visa is given to the spouses and dependent children under 21, of current H1B visa holders. This is an obvious benefit which allows a foreign worker to be accompanied by their immediate family while in the US, and the H-4 visa holders can open bank accounts and obtain driver’s licenses. Since 2015 they have also been allowed to work, but that rule is being rescinded.
So, what this means is that non-marital partners don’t qualify for an H-4, and that puts same-sex partners at a disadvantage when deciding to take an H1B visa position. However, there are some ways to get around the rule with a little effort in securing a valid marriage.
US Immigration Laws Don’t Recognize Any Type of Non-Marital Relationship
The first rule to know is that US immigration law does not extend visa status to non-marital relationships of any type. That includes both opposite sex and same-sex relationships, so no distinction is made based on the gender of the partners.
This does not reflect the reality in the US where same-sex or common law marriages are valid in many states, but since there is no US federal law that recognizes non-traditional marriages, the immigration agencies have no basis to allow them to qualify for what is a federal work permission.
If the Same-Sex Marriage is Valid at Home, the Partner Can Get an H-4
Nonetheless, there is a solution if a same-sex spouse is determined to qualify for an H-4 visa. The bottom line is that US immigration law will recognize the marital relationship if it is valid in your home country, or in the country where you got married. For example, same-sex marriage is not recognized in India, so an Indian couple would need to get married in another country where it is legal.
In that case, as a legal marital union, an H-4 visa could be obtained for the same-sex spouse. The way to think about this rule is that the US is not validating marriages via its immigration laws, and it is up to the couple to demonstrate that their marriage is legal outside of the US prior to entry. If they choose to travel to a country where it is valid, the US wont dispute it as long as there is documentation of the marriage.
Contrasting Rules in Other Countries
The US is fairly strict on this point compared to other countries, which may not require a legal marriage. In Australia, Canada and the UK, unwed LGBT couples can have legal status if they cohabitate for 12-24 months minimum prior to arrival in the country. So, in this way these countries are setting an easier standard in their immigration policy to recognize non-traditional unions.
Is This Discrimination?
Some H1B visa holders may claim they are being discriminated against based on gender, something that is protected at the federal level. As a US non-immigrant worker, it is true that they are entitled to the same labor protections as US citizens. But that law only applies to hiring and firing decisions by employers, and cannot be used to leverage immigration policies and how the USCIS sets its regulations.
- March 9th, 2019