WHEN the US Supreme Court struck down the Defense of Marriage Act (DOMA), their ruling enabled same-sex couples to marry and, for immigration purposes, to petition one another for green cards.
However, what happens if one partner is a US citizen, living in the US, and the partner is living in the Philippines? To file a spousal petition, the couple is supposed to get married, but same–sex marriages are not recognized in the Philippines. So, how does this couple get around that obstacle? The answer is a fiancé(e) (K–1) visa. The basic requirements for a K–1 visa are:
• The petitioner (the person filing the petition) must be a US citizen. Fiancé visas are not available if the petitioner is a green card holder.
• The couple must have met each other, in person, within 2 years of filing the petition. Therefore, the American would need to take a trip to the Philippines to visit their partner, and make sure the trip is well documented, with entry stamps, pictures together, etc.
• When the US citizen returns to the US, the K–1 petition is filed, hopefully approved, and the partner in the Philippines goes to the US Embassy for his or her K–1 visa interview.
• Once the K-1 visa is issued, the alien fiancé enters the US, and must marry the US citizen partner within 90 days of entry. If the fiancé does not marry the American who filed the petition, the petitioned partner must return to the Philippines. The sponsored partner cannot obtain a green card or other visa status in the US in any other way except through the petitioning US citizen. (i.e., they cannot marry another American, be petitioned by an employer, change to student visa etc.)
• The couple would then file for adjustment of status and will eventually be scheduled for an interview. They will be questioned about the “bona fides” of their marriage, i.e. if it is for real or fixed. If the officer is satisfied it is a true love relationship, the green card will be issued.
While same-sex couples are now entitled to the same rights and benefits as opposite sex couples, they are also subject to the same requirements, obligations, and suspicions that opposite sex couples are subject to. The officer may question them extensively on whether this is a true “love” relationship, to discover or rule out any “marriage of convenience.” The same-sex marriage will be scrutinized especially if one of the partners was previously married to an opposite sex spouse and has children from that relationship, but is now in a same-sex relationship? Often, the couple may have kept their relationship “secret” from family and friends. Have they gathered and submitted the appropriate documentation and proof of their true love relationship? They may not have extensive joint documents or pictures together, and if the USCIS questions their friends or relatives, those friends or relatives may be totally unaware of the relationship. Or the interviewing officer may be deeply religious or conservative, and may not approve of same sex relationships, which could make for a difficult marital interview.
Although some same–sex couples, like many opposite sex couples, may think they can file and handle the case on their own, I would strongly suggest they seek the advice, assistance, and representation of an attorney.
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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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