Spouses of nonimmigrant visa holder are usually granted derivative status and are afforded derivative visas to be with their spouse abroad. A legal relationship must be established to be able to show eligibility for a derivative visa. For those who have been living together without the benefit of marriage, there is still an existing regulation that will allow them to be with their partners during a temporary trip abroad.
Ruel and Maria have been living together for 10 years. They are not married but they have 2 children from their relationship: a 5-year-old son and a 7-year old daughter. For the past seven years, Ruel has been working as a Product Manager for a manufacturing company that is a subsidiary of a large multinational US-based company.
As a result of his exemplary work as Product Manager, he is being promoted to manage a small team in the U.S. He would like to bring Maria and their two children with him.
The US company files a petition for Ruel as an intracompany manager. Ruel applies for his L1A visa at the US Embassy in Manila and his two minor children are allowed to accompany him as his dependents with their own L2 nonimmigrant visas. But what about Maria?
Common Law Spouses
For those living together without the benefit of marriage and who can document their lengthy relationship, the B2 classification will be an appropriate visa to temporarily accompany their partners abroad. Note that this rule applies only to those who are traveling as temporary workers, investors, students and diplomats posted in the United States. It does not apply to common law spouses of lawful permanent residents and U.S. citizens.
Derivative status is generally for those partners who are married. It is legally impossible to apply for H4, L2, E2 and F2 for those who are common law partners. Considering that there is no derivative status, the B2 visa is an available visa as long as eligibility requirements are met.
Because Maria is not his spouse, she cannot qualify for an L2 nonimmigrant visa as his dependent. However, because she has been cohabiting with Ruel and she is the mother of their two children, she may qualify for a B2 nonimmigrant visa as Ruel’s domestic partner.
Temporarariness
The principal non-immigrant visa holder must still prove the temporary nature of the activity in the United States. For instance, in the case of Ruel, he should show that he would return to Manila after a brief stay abroad. The same with other nonimmigrants such as the H1B visa holders, E2 investors, L1 intracompany transferee or the F1 student visa holders.
The fact that the nonimmigrant visa holder will stay in the United States for more than one year is not the point of reference. It is proving the temporary nature of the visa of the principal that really matters.
Extensions of Stay
Usually, nonimmigrant workers or students are granted more than a year of visa availability. For the cohabiting partner, he will usually be granted an initial one year of B2 visa stay in the United States and then he can apply for extensions in increments of six months until such time that her partner returns to the Philippines after accomplishing the intended activity.
Same Sex Partners
Cohabiting partners include both the opposite as well as same sex partners. This was the interpretation made more than a decade ago by then former Secretary of State Colin Powell in his July 1, 2001 Cable to posts. Referring to the cohabiting partners’ B2 visa, he emphasized long-term relationships and is true for both opposite and same sex partners.
Although petitioning spouses in same-sex marriages are not recognized, this existing policy of allowing B2 visas for same sex partners of nonimmigrant visa holders appears to be an exemption.
Viable Relationship
Those who are granted the B2 visas to accompany their domestic partners must prove that the relationship is genuine and has existed for a long time. There should be proof of the viability of the relationship such as statements of joint finances, lease or deed of sale of their home, partnership agreements, if available, etc.
Since the visa that will be made available is the B2 visa, the cohabiting partner seeking this classification must still show that he has strong ties to the Philippines. This means that he/she should show that he/she has a home to return to after a brief stay abroad. A long-term relationship will be a critical factor.
If, however, the principal applicant has existing relationship with a legal spouse but maintains a live-in partner, the latter may not be eligible for the B2 visa. Just like an applicant for a visitor’s visa, the standards for eligibility of a domestic partner are high.
(Tancinco may be reached at law@tancinco.com or at 721 1963 or 887 7177)
