For HR professionals, moving key employees to the U.S. from overseas can be complicated. Sometimes employees come on their own and even then, it’s complicated. But what if they bring a family? Extended family? Domestic staff? Modern day family life does not always align with U.S. immigration law. Identifying visa issues up front can help set expectations and in turn facilitate a smooth transition process for the transferring employee, their family and the employer.
Below are some common questions we see in our practice when dealing with multinational companies who transfer foreign workers from overseas offices.
Who qualifies as a “spouse”? Can a cohabitating partner join the principal visa applicant?
U.S. immigration law recognizes a marriage as long as the marriage is legal in the jurisdiction where it occurred. A government issued marriage certificate would be required to establish a legal marriage. Since the government now recognizes same-sex marriages as valid, LGTBQ individuals can sponsor their spouse as long as they can present a valid marriage certificate. Eligible spouses qualify for derivative visa classifications such as H-4, L-2, E-1D or E-2D and can generally join the principal visa applicant for the entire duration of the U.S. assignment.
Cohabitating partners are not legally married and therefore do not qualify for derivative immigration benefits. A cohabitating partner would be required to seek out his or her own independent visa. One option available to cohabitating partners is the B-2 tourist visa which would permit entry to the U.S. for up to 1 year. As part of the visa application, the cohabitating partner would have to show proof of long-term cohabitation and that he/she would be supported financially by the principal visa applicant (or have independent financial means) while in the U.S. A drawback of the B-2 cohabitating partner visa is that it does not grant work authorization. Moreover, because it limits the period of admission to 1 year, the cohabitating partner would have to be vigilant in tracking the expiration date and would be required to frequently seek extensions of stay which are discretionary. This, of course, injects uncertainty into the cohabitating partner’s ability to remain in the U.S. for the full duration of the U.S. assignment. Another option would be for the cohabitating partner to seek out an independent work visa, but this would typically require an offer of employment from a U.S. employer.
Can a derivative spouse work while in the U.S.?
Derivative spouses holding J-2, E-3D, E-2 and L-2 visa status are eligible to apply for work authorization once they enter the U.S. This application can take up to 6 months to result in work authorization. While the application is pending, the spouse is not permitted to work. Spouses of H-1B, O, P & TN visa holders are not eligible to apply for work authorization with one exception. Presently, H-4 spouses can apply for work authorization if the principal applicant has reached a certain point in the U.S. green card process.
Can a derivative spouse volunteer while in the U.S.?
Pure volunteer work for charitable causes does not require work authorization. Thus, derivative spouses and cohabitating partners can typically volunteer regardless of whether they possess work authorization. However, performing unpaid work for a private, for profit company does not generally meet the definition of volunteer work and thus would require work authorization.
Can a child join the principal visa applicant?
Under U.S. immigration law, “child” is a legally defined term and includes biological children who are unmarried and under the age of 21, children born in and out of wedlock, legitimated children, adopted children and step children with certain caveats. Children conceived through ART (assisted reproductive technology) are generally considered to meet the definition of child under U.S. immigration law.
If the definition of child is met, then a derivative visa classification would be accorded to the child just as it would the spouse. Children do are not generally eligible to apply for work authorization, although in some instances, work authorization can be secured for children in L-2 status to do modeling or comparable type of work. Children in derivative status are generally able to attend school in the U.S.
A common issue arises when a child is close to reaching the age of 21 which would cause them to “age out” as a derivative beneficiary of the parent’s visa status. In this scenario, immigration counsel would need to work closely with the sponsoring employer at the outset to explore visa options for such children such as fast tracking a green card application or assisting with an F-1 student visa application.
Can parents join the principal visa applicant?
Parents can join the principal visa applicant but like cohabitating partners, they would only be eligible to apply for the B-2 tourist visa. There is no special visa reserved for derivative parents or for grandparents. Note that if the principal visa applicant were to eventually become a U.S. citizen, he or should could sponsor a parent for a U.S. green card.
To qualify for the B-2 visa, the parent would have to show that s/he maintains a residence and meaningful ties outside of the U.S. and that s/he will be financially supported by the principal visa applicant, or have independent financial means that would not involve working in the U.S. When parents are elderly or if a parent has a serious medical condition, additional evidence may be required to demonstrate that they possess sufficient means to pay for medical care in the U.S. or abroad and thus would not be likely to use any public assistance programs in the U.S.
Can the visa applicant bring domestic employees, such as a long-time nanny?
Sometimes. In certain instances, domestic workers of intracompany transferees (L-1 visa holders) or of U.S. citizens who are executives subject to frequent international transfer are eligible to apply for a B-1 visa. Upon arrival in B-1 status, the domestic employee would then be required to apply for work authorization (an EAD card) which can take up to 6 months. While the application is pending, the domestic employee would not be permitted to work. Moreover, the duration of status might not span the entire U.S. assignment. Like the B-2, the B-1 would have to regularly renew their visa status.
While family unity is usually the highest-ranking concern of many foreign transferees, other issues come into play when considering relocating to the U.S. To name a few: managing foreign assets, U.S. taxation, wills, guardianship documentation, travel letters for children, health care proxies and financial powers of attorney. From the employer’s point of view, whether to draw up an expatriate agreement, localize a foreign employee or pass on the U.S. assignment altogether can hinge upon many of these considerations. A Lepore Taylor Fox attorney can assist employers in designing an international benefits package that is sensitive to the pitfalls of U.S. immigration law, meeting and exceeding the expectations of valued personnel and business needs.