Can You Get a US Work Visa If You Are a Same-Sex Couple?
A US work visa is not explicitly linked to marriage, and has never been off-limits to same-sex couples. When the US Supreme Court overturned the Defense of Marriage Act (DOMA), it did not affect a same-sex couple’s rights to petition for a US work visa. However, the end of DOMA does allow same-sex spouses to apply for family-based immigration visas, such as a green card. Work visas have long been a way for eligible foreign-born citizens to come to the US legally, regardless of marital status. However, there is one aspect of a work visa that has changed due to DOMA’s outcome. Let’s take a closer look.
US Work Visa For A Same-Sex Couple
US Work Visa
Your eligibility for a US work visa is based on your skills, not your marital status. If you qualify for employment-based immigration, an employer may file a petition on your behalf, just as before DOMA was overturned. Foreign-born partners may be able to work in the US in several different categories, including some which are pathways to permanent residency. These categories are typically reserved for company transferees, specialty workers, unique or highly skilled workers, and religious workers. Spouses of company transferees may apply for permission to work in the US.
Other visa categories, such as the E-1 treaty trader visa and E-2 treaty investment visa do not provide a direct path to the green card, but allow the holder of the visa to come to the United States to direct and control their business. Spouses of both the E-1 and E-2 visa holder may apply for permission to work in the United States if they can show proof of a valid marriage.
So what did overturning DOMA change? Derivative visas. A derivative visa is a visa for a spouse or family member to come to the United States on another family member’s work visa. If you and your same-sex partner are both foreign-born, and one of you comes to the US on a work visa, your spouse may be able to come, too. Assuming that your spouse is not inadmissible to the United States for any other reason, you can name them as a derivative on your visa petition.
For example, if you come over on an H-1B US work visa, your spouse may be able to obtain the derivative, the H-4. This visa allows your spouse to remain in the United States for the validity period of your visa. The derivative visa does not come with work rights, although your spouse is allowed to study at a US school or university. This type of visa is only available to married couples, not civil partnerships. You will need to provide a certified copy of your marriage certificate