Temporary nonimmigrant workers in H-1B or L-1 status typically can bring their spouses and children with them to the United States in H-4 or L-2 status. An individual will be regarded as a dependent of an H-1B or L-1 if:

  1. They are the spouse of someone with a valid H-1B or L-1 visas in a bona fide marriage, or
  2. They are the child of an H-1B or L-1 holder and they are under 21 years of age.

To prove the relationship between the H-1B/L-1 nonimmigrant and H-4/L-2, the dependent will need to submit a copy of a marriage certificate if they are the spouse of an H-1B/L-1 or submit a birth certificate if they are the dependent child of the H-1B/L-1 nonimmigrant worker.

What does this mean for LGBTQ individuals? In 2013, the Supreme Court found that section 3 of the Defense of Marriage Act (DOMA) was unconstitutional, and President Barack Obama directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manners as those filed on behalf of an opposite-sex spouse. However, even though petitions filed had to be viewed in the same manner, the documentation required to prove the marriage for dependent family visas remained the same.

Per 9 FAM 102.8-1(E), same-sex marriages are valid for visa adjudication purposes, if the marriage is recognized in the "place of celebration," whether in the United States or a foreign country. The same-sex marriage would be considered valid even if the applicant is applying in a country in which same-sex marriage is illegal. The same applies for civil unions and domestic partnerships like common law marriages, it would only qualify as a "valid" marriage for visa adjudication purposes if the place of celebration recognizes the status as equal in all respects to a marriage.

The next question becomes: how does one prove a civil union or domestic partnership without a marriage certificate for dependent visa purposes? Per 9 FAM 102.801(F), the civil union or domestic partnership must be fully equivalent in every aspect to a traditional common law marriage, and the relationship must bestow all the same legal rights and duties possessed by partners in a fully contracted marriage, including:

  1. The relationship can only be terminated by divorce or death;
  2. There is a potential right to alimony;
  3. There is a right to intestate distribution of an estate; and
  4. There is right of custody if there are children.

For same-sex couples to prove they qualify as a dependent H-4/L-2 spouse, therefore, they must either be legally married in any place that recognizes same-sex marriages and have a marriage certificate or legal document to prove the marriage or they must show that the civil union or domestic partnership recognizes the status as equal in all respects to a marriage. The regulations do not specify the type of documentation needed to prove that the civil union or domestic partnership is recognized as equal in all respects to a legal marriage, but some proof of documentation would need to be presented to USCIS in order for USCIS to determine that the dependent qualifies as an H-4/L-2 spouse based on a legal marriage. The recommendation when filing H-4/L-2 petitions for LGBTQ couples is to provide documentation that either is issued by a government agency, an official verification, or legal brief that demonstrates a valid marriage that is fully equivalent in every way to a common law marriage.

Even though there are avenues available for LGBTQ couples to take advantage of following their spouse to the U.S. as a H-4/L-2 dependent there are still hurdles through which they must jump. If the country they are living in does not recognize same-sex marriage, they must travel to a country that is recognized as a "place of celebration" for same-sex marriages or if they are in a civil union or domestic partnership they must provide documentation that their union or partnership is recognized as equivalent to a common law marriage, which documentation might not be readily available or easily obtainable as a marriage certificate.

In the end, as more countries around the global begin to recognize same-sex marriages, civil unions, and domestic partnerships, government agencies like the USCIS will need to change their policies, procedures, and requirements toward greater inclusivity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.