Following the landmark U.S. Supreme Court ruling that the federal government must recognize same-sex marriages that are conducted in places where it is legal, USCIS has announced that it has begun accepting and reviewing 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. Accordingly, a U.S. Citizen or a lawful permanent resident (LPR), who is married to or engaged to be married to a foreign national of the same sex, may apply right away for immigration benefits for which they believe they are eligible.
While opposite-sex couples face many obstacle in getting married and navigating the maze of immigration requirements, same-sex couple face those same obstacles and more. One of the biggest obstacles is that same-sex marriage is not legal in the vast majority of jurisdictions in the world. According to USCIS and the US Department of State, a same-sex marriage will be recognized for immigration purposes if the marriage took place where it was legal.
What options do individuals have if they live or reside where same-sex marriage is not legal?
1.If you are a US Citizen (USC) or Legal Permanent Resident (LPR) and your foreign national spouse is in the U.S., but the state you live in doesn’t recognize or sanction same-sex marriage, then you need to go to and get married in a state that does. You must research or check with state authorities to see if there are any residency requirements for the state you want to get married in. You can then return to the state that you live in and file the visa petition from there.
2.If you are USC and your fiancé(e) is abroad, you are eligible to file the K-1 Fiancé(e) visa petition on behalf of your fiancé(e). If your fiancé(e) is granted the visa, he or she can enter the U.S. on the K-1 visa and then you must marry within 90 days. If the state you live in does not recognize or sanction same-sex marriage, then you need to get married in a state that does. You must research or check with state authorities to see if there are any residency requirements for the state you want to get married in. You can then return to the state that you live in and file the visa petition from there.
3.Sometimes, for various reasons, the consulate will deny the K-1 visa and advise the foreign national that he or she should get married and have you file the spouse visa petition instead. In cases where the foreign spouse’s country of residence does not recognize or sanction same –sex marriage, you may have a few alternative option:
a.You can both choose to visit a third country that does recognize same-sex marriage and get married there. The spouse petition is then filed through the normal procedures.
b.If your spouse has a B-1/B-2 visitor visa or is from a country that is Visa Waive eligible, then he or she can come to the U.S. and you can marry here. The spouse petition is then filed through the normal procedures. Your spouse would have to leave the U.S. and return to his or her home country to complete the processing.
c.Your spouse can come to the U.S. pursuant to an alternative nonimmigrant visa (e.g. F-1, H-1B, L-1, etc.). You can then marry in the U.S. and then follow normal procedures for obtaining the green card.
USCIS has announced that it will continue to update information regarding same-sex marriage and immigration benefits. We at VisaPro continue to monitor the developments in this regard and will keep our readers updated. If you are in a same-sex marriage and wish to sponsor your foreign national spouse for any immigration benefit or if want to learn more about the immigration options that are now available to same-sex couples and their family members, Contact VisaPro immediately. We will be happy to talk to you.
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