July 20, 2023
Immigration and Non-traditional Family Members
As time goes on, the typical assignee profile is changing in line with the increase in diversity of the average workforce and freedoms availed to the majority. One of the most emotive aspects of this is those that are considered as dependants of the assignee; those that would need or desire to accompany an individual on assignment. Stereotypically if an assignee was permitted or required dependants to accompany them on their assignment, it would usually be a spouse of the opposite sex and potentially young biological children. As the landscape changes however, this has now diversified so that it is not uncommon for an individual to require a non-traditional family member to accompany them.
A traditional family would include male and female parents, their children (birth or adopted), grandparents, siblings, Aunts, Uncles and cousins. A non-traditional family would be classed as including parents from the lesbian, gay, bisexual, and transgender communities (LGBTQ) and other non-traditional families such as grandparents raising grandchildren, an unmarried couple living together, friends living together and sharing finances long term, couples choosing not to marry, same-sex couples and polyamorous families.
Typically, for immigration purposes, a traditional family unit has followed the above description and limited the “family” to include a male and female parent and their biological children up to the age of 18. Adopted children and children for whom one of the parents is not the biological parent are also commonly recognised, although may require additional paperwork to be provided for the immigration application processes. Modern day society recognises that this traditional description of a family unit is an unrealistic representation of the variety of family units that exist worldwide. However, while some countries take this into consideration and amend their immigration policies to recognise the non-traditional family types and individuals who can be considered a dependant family member for immigration purposes, many are slow to progress or even acknowledge these variances.
Many countries such as the UK will consider individuals as a dependant family member if they are an unmarried partner (subject to proving long term status of the relationship). However, many countries still do not recognise an unmarried partner or a same sex partner as a legal dependant from an immigration perspective. Furthermore, multiple marriages or bigamy is also not recognised in many countries, making immigration impossible (or extremely challenging) for those who come from a culture that continues to practice polygamy.
With regards to immigration for the USA, according to the United States Citizenship and Immigration Services (USCIS) the following may be considered a “non-traditional” family and may experience complications or challenges with the immigration process: children born out of wedlock, adoptive relationships, children with unclear parentage, civil marriages or marriages that are not legally recognised, polygamy, individuals raising relative’s children (grandparents, aunts, and uncles), and partners with “marginalized orientations, gender alignments, and identities” – also known as “MOGAI”.
As of today, Nonmarried partners would still be unable to avail themselves of non-immigrant or immigrant derivative status of a principal applicant as a marriage certificate is required.
However, falling under one of these aforementioned “non-traditional” family categories does not necessarily mean that immigration to the US is impossible. It does however mean that the application process may be more complicated, be subject to more scrutiny and holds a higher risk of an application being rejected.
With regards to child dependants, for a parent to bring a child to the US it is usually a fairly simple process as long as the child is under 21 and unmarried. However, if the child is born out of wedlock, there will be a requirement to provide further evidence to prove the parentage such as birth certificates, blood tests, affidavits attesting the long-term relationship between parent and child, and evidence the child has been legally legitimised. It is also fairly common to use the student path to gain legal entry into the US when a dependant or working visa is not a possibility, and visit visas are not a suitable fit due to their limitations.
The age of the child can also significantly impact the dependant application process. If a marriage creating the stepparent/stepchild relationship takes place be¬fore a stepchild turns 18, he or she will be accorded the benefits of a natural-born child and subject to the same immigration benefits and/or restrictions.
However, if an individual applies for lawful permanent resident (LPR) status as a child but they turn 21 before being approved for LPR status (also known as getting a Green Card), that person can no longer be considered a child for immigration purposes. This is called “aging out.” US Congress enacted the Child Status Protection act to freeze the age of children for application purposes, but outcomes vary widely depending on specific case fact patterns and it is highly recommended to contact an immigration attorney to analyse your specific case.
Interestingly in the US, non-immigrant visa holders are not permitted to support their parents as dependants, but they are able to sponsor a work visa for a nanny or domestic worker. Dependant parents would only be able to obtain B-1 visitor status.
For those individuals who are not eligible for “Derivative Status” (cohabitating partners, elderly parents, Extended Family Members, and other household members), the B-2 classification may be appropriate. Applicants planning to stay in the US for more than six months would need to make a request to the Department of Homeland Security (DHS) for a one-year stay. If needed, they may then apply for extensions of stay in increments of six months for the duration of the principal’s nonimmigration status in the US.
As you can see, it can be incredibly challenging for a desired family member to accompany an individual. Added to the potential complexity of the immigration process, is the emotive and possibly very sensitive aspect of the subject. Navigating both can throw many hurdles in the way of a smooth relocation, with potential assignments being cancelled or ending early due to the insufficient support availed to an assignee and their dependant. Unfortunately, we can only navigate the immigration systems in front of us; it is hoped as time goes on more countries recognise non-traditional family members and expand their immigration systems to accommodate the same however until that point, obtaining legal advice is highly recommended.
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Sterling Lexicon and Graham Adair partner seamlessly to simplify our client’s experience. When you have employees relocating to the U.S., our team of experts will manage the process efficiently and effectively so that the U.S. visas and the immigration support needed for relocation are the least of your concerns when you are putting your team in place.
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As Head of Immigration with Sterling Lexicon, Leanne leads a team of specialists who are responsible for ensuring the entire immigration process is smooth and stress-free for clients, assignees and their accompanying family members. She brings over ten years of experience in strategic immigration management, planning and consultation to her role, and has cultivated invaluable knowledge and experience in processing countless global migration applications. As a trusted partner, she consults with clients on everything from policy considerations and cost or efficiency improvements, to the impact of opening offices in new locations. Leanne is a frequent presenter and author on global immigration topics and trends.