USCIS Extends Derivative-Type Status to Household Members

Friday, August 26th, 2011

In a significant policy announcement, United States Citizenship & Immigration Services (USCIS) has stated that it will extend legal status to non-derivative household members of prinicipal non-immigrant visa holders — beyond his or her spouse and children. This marks a significant change to the eligibility status for cohabitating partners, caregivers, parents, and other nonimmigrant household members.

For example, foreign nationals often come to work or study in the United States on an H-1B, F-1, or other non-immigrant visa. In doing so, he or she often chooses to bring a spouse or child on the H-4, F-2, or other corresponding derivative visa. Such corresponding “derivative status” extends only to dependents which are limited to the nuclear family, i.e. children and spouse — not same-sex partners, elderly parents, brothers, sisters, or other household members.

Under the new policy guidance, derivative-type status will confer through the B-2 visa to such “household members” of a principal nonimmigrant who (1) regularly resides in the same dwelling as the principal nonimmigrant, and (2) with whom the principal nonimmigrant maintains the type of relationship and care as one normally would expect between nuclear family members.

Thus, a same-sex partner, girlfriend, boyfriend, parent, sibling, or other “household” member who would not ordinarily benefit through derivative H-4 or F-2 type status from the principal H-1B or F-1 visa holder can now receive the same derivative-type benefits — legal status to enter or continue their stay in the United States with the principal non-immigrant if they can demonstrate regular cohabitation and a bonafide relationship, e.g. couples, caregivers, and the like.

These aliens may seek B-2 visas, or change their status to B-2, to allow them to reside with the principal nonimmigrant visa holder who is in the United States in another status (H-1B, F-1, etc.).

Department of State (DOS) guidance directs consular officers to notate the B-2 visa with the principal nonimmigrant’s visa type and duration, and to advise the B-2 visa holder to seek admission for one year at the point of entry if the B-2 visa holder plans to stay in the United States more than 6 months. Applicants may also seek extensions in six month increments from the Department of Homeland Security (DHS) for the duration of the principal alien’s nonimmigrant status. The new policy is intended to ensure USCIS adjudicates these applications uniformly and consistently with the manner in which DOS issues the visas.

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