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 Since 2015 they have also been allowed to work, but that rule is being rescinded.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
17 thoughts on “Can a Same-Sex Partner Get an H-4 Visa Under US Immigration Law?”
Hi! I am a Filipino who had a legal same sex marriage done in Cancun. My wife is currently in Philippines and I wanted her to be with me. Can I apply her H4 visa in US embassy Philippines? Thanks!
Hi Keren! I am also a Filipino. I also would want to marry my long time boyfriend. How was the process at Cancun?
Hi bon, everything went good. It was fast as soon as you have a complete document. I would suggest for you to be there in 3 weeks at least because of the pandemic.
Hi Keren! Is there any way I could contact you so that I could ask you in detail?
You can give me your email or what’s app details
Hi! It’s firstname.lastname@example.org. Send me an email before I delete this comment. Thanks!
Hi Bon and Ren,
Glad to see your comments. It’s very rare to find any such info on same sex H4 rules. I am H1b holder too.. and working in US and I m in relation with my same sex partner since last 5 years. She is from Malaysia and I m from India. Both the countries same sex marriage is not legal. Do you think if we get married in some other country where it’s valid, USCIS would grant my wife’s the H4 visa ? Kindly please give response.
Hello Shruti, I am in the process of applying H4 visa for my wife. Our interview will be next year. Based on what I read about their law, as long as you are legally married in the country where you get married, you will be also legally married in USA. That’s what I understood.
Me and wife both are born in India and we have had our marriage in NYC, USA 2 and a half years back. I have been in H4 visa for 7 months but that was only a status change approved in USA after which I moved back to H1B and basically never got it stamped. I may have to move back to H4 and try to stamp my visa from India next year- I need to see my parents. Provided India doesn’t recognize same-sex marriage as well, I have been a little scared. It would be great to know about your experience. Let me know if I can contact you. Thanks
I’m sorry Sonali I am not really sure about that. I still have to process my wife’s H4 visa next year. I am under H1B visa too,
May I know the results on your h4 visa processing? I know, it’s been a year now. I am planning to process my wife’s h4 visa too. She’s in the Philippines and I am here in USA for almost a year now.
Hi Janey! It was easy. She’s here now. If you need more info, give me your email and I will message you.
Hello, I have a long time partner and he is leaving for the US this year. I have an existing Tourist US Visa and planning to visit and marry him when he gets to the US. Is that legal?
Hello can you email me? email@example.com i will ask you about the process of H4 Visa
Hi Den, can you share me any experiences about youf process of h4?
Im also planning to get my partner this year and is considering online marriage as I read that Utah County allows this kind of marriage with legal papers.
once you get your marriage certificate, send the original to your partner and let her apply for h4 visa.
Noted on that. Did you consummate your marriage before the H4 application?