Are common-law spouses treated the same as real sposes on temporary workpermit visas?

May 14, 2007 12:59 AM

US Joboffer. If I do get the gig on a temporary work-visa, how is my common-law 'husband' treated? Can he come along and take care of the kids or do I have to actually marry him to make that 'dependant spouse' thing work?
posted by dabitch to Work & Money (15 answers total)

Immigration law is really, really complex. I'd recommend posing this question to someone well-versed in US law in this sense.

Sorry that this sounds like a non-answer, but I suspect you're going to hear it at least once in the thread.
posted by secret about box at 2:09 AM on May 14, 2007

Best answer: I don't believe common law marriage is recognized by immigration law in the US. link

IANAAmerican.
posted by loiseau at 3:27 AM on May 14, 2007

I would recommend getting married and changing your names (so they are the same) because all the immigration people are suspicious and overworked. Reduce variables, and follow all the rules. The US can be a very hard place to get into - see an immigration lawyer if need be.

A word of warning: people from the civilised world who have never lived in the US are usually deeply shocked by the health care costs. Be prepared for the worst.
posted by chuckdarwin at 3:34 AM on May 14, 2007

Response by poster: Thanks all. What a silly reason to get married, but I guess that's the way it goes.
posted by dabitch at 5:02 AM on May 14, 2007

dabitch, we didn't want to do it, either. Marriage is a money-spinner, and really doesn't MEAN anything anymore (although the older L7s who run things don't seem to grok that fact). No ring, no honeymoon, no church, no religion allowed... just went to the courthouse with the folks and signed a form. The judge didn't even ask us for any $.

That's right, my wife of 14 years and I got married for $0.00. Ha! Take that, Wedding Industry.

Just figure out the most painless way to do it in Denmark, and do it... take his name, too, if you can stand to (we didn't) because the aforementioned gubmint drones will appreciate it.
posted by chuckdarwin at 5:52 AM on May 14, 2007 [1 favorite]

If the hiring agency knows you under the other name, you might want to consider having your husband take your name instead.

If your employer sees that you're changing your name, they will probably ask why. If it's because you're getting married, they MIGHT think that you're gaming the system somehow and drop you. They may also be just fine with it. But if your husband takes your name, there's little chance of a problem.
posted by Malor at 6:26 AM on May 14, 2007

Response by poster: The name thing can become a problem since we are both established under our respective names in our industries - so neither one of us would have an easy time changing. (and our child has both our names).
posted by dabitch at 6:41 AM on May 14, 2007

Best answer: I'm not sure if having the same name is such a big deal, especially in your case where you have a child with both names. In my experience there's a different level of scrutiny depending on whether one is entering the U.S. with a temporary visa or as an immigrant. There will also be a difference depending on whether your employer is sponsoring your visa or you yourself are doing it on behalf of a family member. What I am getting at here is that the worst-case scenario in terms of scrutiny, in which you have to show proof you are really married have the same name etc. etc., is one in which say, you have the so-called 'green card' and want to sponsor your spouse to get one, too, based on your relationship. When an employer sponsors you for a temporary work visa, providing all the adequate documentation, a dependent visa for your legal spouse won't be subject to the same extent of scrutiny and hurdles. (You do understand that since your husband will be entering as your dependent, he will not be allowed to work in the U.S. unless he finds an employer to sponsor him for his own temporary work visa.)
posted by needled at 7:50 AM on May 14, 2007

OK, forget the name thing. We got a couple of raised eyebrows, is all. It's not REQUIRED... especially (as needled points out so well) if you're only going to be there for a short time.
posted by chuckdarwin at 8:11 AM on May 14, 2007

I would say that getting married is the key here. You do not need to change your name. The USCIS does not see this as indicative of anything, but I believe it to be true that they do not acknowledge common law partnerships. IANAL, and IANAimmigrationL (and you should speak to one) but I have recently been through the greencard process through marriage and even though my wife took my name the USCIS don't see this as relevant.
posted by ob at 8:14 AM on May 14, 2007

This is not a USCIS issue. This is a State Department issue.
posted by Pollomacho at 8:49 AM on May 14, 2007

This is a USCIS and State Department issue.

Don't worry about changing the name.
posted by thirteenkiller at 9:16 AM on May 14, 2007

Application for nonimmigrant visas outside the United States is under the purview of the U. S. Department of State (including those for H4 dependants). Application to change or adjust nonimmigrant status while within the United States would be under the jurisdiction of USCIS.

Denmark (should your common-law spouse be Dane, assuming from your location?) is a participant in the Visa Waiver Program with the United States. That means hubby can enter the United States for 90-day stints. He still wouldn't be able to work and he'd have to leave and come back every 3 months, but at least it's fairly hassle free.
posted by Pollomacho at 10:37 AM on May 14, 2007

Pollomacho, USCIS and State handle non-immigrant visa applications together. USCIS screens potential applicants in a petition process before State gets the file.

Here's a USCIS explanation of the work visa process.

He still wouldn't be able to work and he'd have to leave and come back every 3 months, but at least it's fairly hassle free.

Be careful about this. He'll get a lot of scrutiny if he's here all the time and just leaving to renew his I-94, especially if he's got a spouse or girlfriend here. He could be denied entry, in which case he'd be turned around and sent home and banned from the visa waiver program.
posted by thirteenkiller at 12:27 PM on May 14, 2007

Thirteenkiller, it is true that a principal nonimmigrant worker's employer would be "screened" by USCIS however the actual screening for individual initial nonimmigrants outside the United States (with the exception of visa-waiver and visa-exempt visitors) comes at the Consulate, particularly as is the case with a dependant who is not coming to work(for whom no form I-129 is filed with USCIS) as we are discussing in the case of this woman's common law husband.

From your link:

For most employment-based nonimmigrant visa categories, the employer starts the process by filing the Form I- 129 with USCIS.

You'll note, it is the employer not the employee that is filing the petition. Also a dependant is not filing an employment-based petition.

Your husband may get some scrutiny, a simple explaination will probably allay much of that, especially if it is clearly stated that his wife is a nonimmigrant. It is, of course, preferable to just get derivative status and not have to worry about the coming and going. If you do decide to make it official, don't worry about the names.
posted by Pollomacho at 6:51 AM on May 15, 2007