Can My Spouse Obtain a Marriage or Fiancé Visa If We are a Same-sex Couple?
Yes, marrying or planning to marry your partner of the same sex may qualify for entry into the United States in the same way a traditional relationship would. Since 2013, the Department of Homeland Security recognizes lesbian, gay, bisexual, and transgender (LGBT) relationships as equal to heterosexual relationships for the purpose of determining marriage and fiancé visa issuance.
After the Supreme Court ruled the Defense of Marriage Act (DOMA) unconstitutional in United States v. Windsor in June of 2013, President Obama directed federal departments to adjust their policies in accordance with the decision. This included ensuring federal benefits for same-sex legally married couples would be implemented swiftly and smoothly.
Secretary of Homeland Security Janet Napolitano directed U.S. Citizenship and Immigration Services to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.
What Can I Do Now?
If you’re a United States citizen married to a spouse of the same sex who isn’t an American citizen, your sexuality will not prevent you from sponsoring him or her for a visa. To do this, you can file a Form I-130 and other applicable accompanying paperwork.
If you’re a U.S. citizen engaged to a partner of the same sex who isn’t an American citizen, your Form I-129F petition for an alien fiancé visa will not be denied on the grounds of your sexuality.
This is not to say any same-sex couple applying for a visa will be successful in their application as there are still requirements and limitations in American immigration law, but homosexuality, bisexuality, and transgender identities will not prevent you from seeking the same immigration status traditionally afforded to heterosexual couples. If you plan to apply for a fiancé or marriage visa, you should consult an immigration attorney for assistance.
But My State Doesn’t Recognize Same-Sex Marriage
As long as you were married in a state or country that recognizes same-sex marriage, United States Citizenship and Immigration Services (USCIS) will recognize your relationship as equivalent to a heterosexual relationship. Federal benefits for same-sex couples are independent from state restrictions on marriage if you are legally married elsewhere.
Generally, the law of the place where your marriage was celebrated determines its legal validity. If you were legally married, your marriage will be recognized by USCIS regardless of the law in the state where you currently live.
Similarly, if you haven’t married your partner yet but you plan to do so in a state where same-sex marriage is recognized, you can sponsor him or her for a K-1 visa just as you could if you were in a heterosexual relationship. Even if your current state of residence doesn’t recognize same-sex marriage, by planning to tie the knot in a place that will recognize your marriage your partner may qualify for an Alien Fiancé Visa.
However, navigating these issues is complicated and may very well require the advice and assistance of a legal professional. If you are considering applying or have already begun the application process, you should seek legal counsel from a qualified immigration attorney.
Before July of 2013 My Visa Application Was Denied, Should I Try Again?
Applications that were denied solely because of DOMA will be reopened and evaluated under current policies. You can initiate this process by contacting USCIS or hiring an attorney to do the work for you.
Once your application is determined to have been denied on the basis of DOMA policy, it will be reopened and considered anew. Additionally, if you or your partner’s work authorization was affected by the denial of a visa application, USCIS will review previous decisions in accordance with current law.
Will the New Policy Allow My Foreign Spouse’s Children to Accompany Him or Her to the United States?
Yes, dependents and certain family members are often allowed to come to the United States with their parent or other relative traveling on a visa. This is not an absolute rule allowing all family members to come along with their visa-carrying relative, but with an attorney’s help dependents may be able to accompany your spouse to the United States.
Under U.S. immigration laws, eligibility for a wide range of benefits depends on the meanings of the terms “marriage” and “spouse”. After the United States v. Windsor ruling by the Supreme Court, the definitions of “marriage” and “spouse” under federal law are not gender specific and you will thus be afforded the same legal recognition as a heterosexual couple would be.
Will USCIS Policy Recognizing Same-Sex Marriage Increase My Chances of Becoming a U.S. Citizen?
Yes, by marrying a U.S. citizen and living in the United States with them for three years you may become eligible for naturalization. This is different from typical naturalization policy which requires five years of residence. Acquiring citizenship through the three year requirement will not be affected by distinguishing your marriage as homosexual or heterosexual.
Same-Sex Marriage and Fiancé Visas
If the love of your life is a foreign citizen and the same sex as you, the inconsistency of international and state laws will not prevent you from living as a married couple in the United States.
If this applies to you and you would like to begin or continue a visa application, you should consult an immigration attorney.