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Same-Sex Partner of an Employment-Based Visa Holder

At Joseph & Hall P.C., we are committed to helping individuals, families, and businesses navigate U.S. immigration law. We understand that every situation is unique, and we provide personalized legal services to meet our clients’ needs. This includes providing clear guidance for the same-sex partners of employment-based visa holders seeking to join their loved ones in the United States.

The United States Department of State recognizes same-sex marriages and relationships when determining visa eligibility. This landmark decision ensures that same-sex partners are afforded the same immigration considerations as opposite-sex partners. If your partner is the holder of an employment-based visa, you may be eligible to accompany them to the U.S.

Available Visa Classifications for Same-Sex Partners

The specific visa you are eligible for depends on the visa classification of your partner. For non-immigrant employment-based visas, the primary visa holder’s classification determines the derivative visa for their spouse.

Here are some common examples:

•   H-4 Visa: If your spouse holds an H-1B, H-2A, H-2B, or H-3 visa, you may be eligible for an H-4 visa. In some cases, H-4 visa holders can apply for work authorization.
•   L-2 Visa: For spouses of L-1 intracompany transferees, the L-2 visa is the appropriate classification. L-2 visa holders are generally eligible to apply for employment authorization upon arrival in the U.S.
•   O-3 Visa: If your spouse has an O-1 visa for individuals with extraordinary ability or achievement, you can apply for an O-3 visa to accompany them.
•   E-1 or E-2 Derivative Visas: Spouses of E-1 treaty traders and E-2 treaty investors are eligible for derivative E visas and can also seek work authorization.
•   J-2 Visa: For spouses of J-1 exchange visitors, the J-2 visa is available. Depending on the specifics of the exchange program, J-2 holders may be able to apply for work authorization.

In cases where a couple is not legally married, the same-sex partner of an employment-based visa holder can often be issued a B-2 visitor visa to cohabitate in the U.S. However, it is important to note that B-2 visa status does not permit employment.

How to Apply as a Same-Sex Partner

The application process for a derivative visa typically involves the following steps:

1. Proof of Relationship: You must provide clear evidence of your legal marriage. The most important document is your official marriage certificate. The marriage must be legally valid in the jurisdiction where it was performed.
2. Primary Visa Holder’s Status: You will need to submit proof of your spouse’s valid employment-based visa status, such as their visa approval notice (Form I-797) and a copy of their visa.
3. Complete the Visa Application: You will need to complete the appropriate visa application form, typically the DS-160, Online Nonimmigrant Visa Application.
4. Pay the Application Fee: Each applicant must pay the required visa application fee.
5. Schedule and Attend an Interview: You will need to schedule an interview at a U.S. embassy or consulate in your home country. During the interview, a consular officer will verify your documents and confirm your eligibility.

Joseph & Hall P.C. has a national reputation for excellence in providing legal services to individuals and families. If you’re looking for immigration advice and assistance with your derivative visa application, you can get in touch with one of our immigration lawyers directly. We are here to provide the personal touch and superior customer service you deserve.