Recently, the Department of State (DOS) issued a cable, providing guidance to the embassies around the world on how to handle immigration cases involving same-sex couples. This means that US embassies must follow the DOS’s cable or guidance.
Among the matters discussed in that cable are that, “Beginning immediately, consular officers should review visa applications filed by a same-sex spouse in the same manner as those filed by an opposite-sex spouse…A same-sex marriage is now valid for immigration purposes, as long as the marriage is recognized in the ‘place of celebration.’ A same-sex marriage is valid for immigration purposes even if the couple intends to ultimately reside in one of the 37 states that do not recognize same-sex marriages. The same-sex marriage is valid even if the applicant is applying in a country in which same-sex marriage is illegal.”
With respect to non-immigrant visas, the DOS cable notes that same-sex spouses and their children are equally eligible for “derivative visas.” This means that if there is a same-sex couple, and one spouse has an H-1B Visa, the other could obtain an H-4 Visa. Similarly, spouses of L-1 Visa holders could be eligible for an L-2 visa, etc.,
The DOS cable further notes that “A spouse of a US Citizen, as well as a spouse of a lawful permanent resident (when the priority date is current), may apply for an immigrant visa after USCIS approves the I-130. The embassy will evaluate the validity of the marriage based on whether it was legally valid in the place of celebration.” Therefore, if the couple gets married in one of 13 states that recognize same-sex marriages, the marriage would be valid, even if the couple lives in one of the 37 states that does not recognized such marriages.
The cable further notes that “Same- sex spouses (and qualified children or stepchildren) can also qualify as dependents of employment-based categories and family-preference categories, and as follow-to-join derivatives.” Also, “Many same-sex couples live abroad in countries where they are unable to marry.” (The Philippines is one such country.) However, the DOS notes that “Starting immediately, same-sex partners of U.S. citizens may apply for fiancé nonimmigrant K-1 visas to wed in the United States.” DOS anticipates that a “significant portion of same-sex partners intending to immigrate to the United States may utilize fiancé visas.” Therefore, if your same sex partner is overseas, you cannot fly to the Philippines to marry him or her (because such marriages are not recognized). Therefore, you would need to bring him or her to the US on a fiancée visa, provided you are a US citizen. (Fiancée visas are not available to spouses of immigrants).
If you are in a same-sex relationship, and wish to confer immigration benefits on your spouse or fiancé, you should seek the advice of an attorney who can evaluate your situation and advise you on the best way to proceed. You have to make sure that you are both eligible. For example, if your partner is in the Philippines, you cannot marry him or her until he or she comes to the US. If they are in the US, but are out of status, they may not be eligible to adjust status in the US (if they entered the US without inspection or crew member, and don’t have the benefit of section 245(i), etc.). However, by seeking the advice and guidance of an attorney, you can make sure that you are eligible, and can finally live your American Dream along with your spouse.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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