Elderly or infirm parents, cohabiting partners, and close family, may be helped to stay here as a partner or close family member to a non-immigrant who would not otherwise be entitled to stay. This recent Immigration Memo would allow members of a nuclear family to stay here as long as the principal non-immigrant is allowed to stay. If a nuclear family member comes to the U.S., he/she should tell the Immigration Officer on arrival that a stay with the principal non-immigrant should be granted for the duration of the principal alien’s authorized stay.
Some cohabiting partners have assumed that this memo applies to them if they are married to a U.S. citizen or permanent resident. Until a definitive Federal enactment is passed for married same sex partners of U.S. citizens and permanent residents, the government has indicated it will allow them to stay. This new Memo of the USCIS does not apply, however, to these same sex partners. It is only for the sex partners of non-immigrants who have H-1, L-1,
E-1, E-2, 0-1 & P-1 status to allow ineligible family members or same sex partners to come or to remain in the U.S. for a finite period of time, namely, the duration of stay of the principal non-immigrant.
As an example of the application of this Memo, we have a client family of non-immigrant L-1 status holders who have a son who is now over 21 and would lose his status because he otherwise would be ineligible because he is over age. The son’s status would be allowed now for the duration of the parent’s stay under B-2 status because he is a household member who has become ineligible for derivative status, but since he regularly resides in the same dwelling as his parents, he may stay under B-2 status. The son now may receive and keep extending while his family is in L status.
Although the B-2 status is considered temporary, the principal aliens in L-1 status may extend this visa for up to 6 or even 7 years. The son even though over 21 could extend his status for the same period to match the extended period of his parents.
A question arises for a cohabiting partner whose principal alien applies and receives permanent residence. Can the partner continue to remain here after the principal alien has received permanent residence? It would seem not, although the Administration has indicated in bulletins that if the partners have married according to the laws of a State that allows same sex marriages, it would not enforce any measures to separate the same sex married couple by allowing these same alien sex partners to remain here.
If you need help or advise, call us at 212-944-9420.