Dependent Eligibility for Visas
Under U.S. immigration law, your “spouse” is your legally wedded husband or wife, whether same- or opposite-sex.
Customary and common law marriages meet the definition of a “marriage” under U.S. immigration law only if the marriage is legally recognized as a lawful marriage in the place where it took place. For example, some states in the U.S. recognize civil unions that provide rights similar to those provided by marriage, but the civil unions themselves are not recognized as legal marriages by those states, and cannot be the basis for federal immigration benefits. On the other hand, a marriage in a state or country that legally recognizes that marriage is binding for the purposes of federal immigration law, even if the state or country you are currently living in does not recognize it.
A Note on Same-Sex Spouses
A recent U.S. Supreme Court decision makes same-sex spouses eligible for U.S. immigration benefits as dependents. However, certain U.S. federal agencies have not yet issued clear guidance for their employees on this issue. Some same-sex spouses may still have difficulty being admitted to the United States by Customs and Border Protection for this reason. Please consider the risk of delays or denials at the consulate or port of entry when planning your trip to the United States with your same-sex spouse.
Under US immigration law, your “child” is an unmarried person under 21 years of age. An individual qualifies as your child if he or she is:
- A biological child born while you were married to the child’s other parent (in wedlock);
- A stepchild, as long as the marriage creating this relationship occurred before the child turned 18;
- A child legitimated under the law of the country in which she or you live before the child turned 18 and you had custody of the child at the time;
- A biological child born out of wedlock, as long as you have or had a bona fide parent-child relationship with the child; OR
A child adopted by you, although certain other requirements may apply.
If you have questions about whether your spouse and/or child qualify as your dependents under US immigration law, we suggest that you contact an immigration attorney. It may also be helpful to contact an attorney in the appropriate country to determine whether the required legal relationships (spouse through “marriage” and “legitimated” or “adopted” child) are recognized under that country’s laws. For information about your marriage, this would be the country where the marriage took place. For common law marriages, this would be the country where you lived together. For information about your child, the appropriate country would be the country where your child became your step-child or was born, legitimated, or adopted.