CBP Only Admitting Same-Sex Spouses under B-2 Status

According to a recent liaison meeting with its Buffalo, NY office, USCBP does not have a formal, national policy in place yet addressing the admission to the U.S. of same-sex spouses who are dependents of individuals holding temporary visa status. AILA/CBP Buffalo, AILA InfoNet Doc. No. 14020748 (posted 2/7/14). CBP has stated that in the interim, it will admit same-sex spouses under B-2 status, but only for a 1-year period.  Id.

What are the implications of this lack of a formal policy for TN visa workers? Generally, TN visa workers can be admitted for up to a 3-year period. The spouse of a TN visa worker is entitled to be admitted for that same period. Under USCBP’s current position, a TN visa worker’s same-sex spouse would be admitted under B-2 status, and only for a 1-year period. The inconvenience of USCBP’s decision is that such individuals would then have to extend their B-2 status annually. This could be accomplished by either: (1) filing an I-539 application with USCIS to extend B-2 status; or (2) departing the U.S. and seeking from USCBP another 1-year B-2 period at the border.

It is not entirely clear from USCBP’s announcement on how citizens of Mexico will be treated. The U.S. Department of State has already indicated that it will issue TD visa stamps to the same-sex spouses of TN visa workers. Will USCBP admit these TD visa holders under TD status for the full 3-year period? Or will it instead try to admit these TD visa holders under B-2 status for a 1-year period. At this point, it is not clear how USCBP will handle this issue.