With the passage of DOMA, I’ve had the chance to speak with quite a number of same sex couples who are disoriented when it comes to figuring out immigration processing. There is the excitement of finally having validation and official sanction of the relationship, but then the realization in many cases that the immigration process itself is rather daunting.
Same sex couples quickly come to realize it’s not so easy for immigrants either. There is a great policy battle surrounding immigrants and same sex couples alike. There are the problems of being in the U.S. illegally, meaning either entering the U.S. illegally or perhaps overstaying on a valid visa. Also, there is the problem of working without authorization. Work in the U.S. is considered an immigration benefit. For example, anyone who applies for a job claiming to be a U.S. citizen is very possibly permanently barred from the U.S. without the possibility of obtaining a green card based on marriage to a U.S. citizen. This applies regardless of whether or not a couple is of the same sex.
The pages in my website are devoted to family immigration: U.S. citizens or green card holders who marry foreign fiancés in or out of the U.S. and then want to obtain visas or green cards for family members. Same sex couples should read the pages on my site no differently than would heterosexual couples, but with some notables.
For same sex couples there is the problem of demonstrating a valid marriage. The USCIS has left this aspect of immigration open to further development. The essential problem is that only some States in the U.S. and some countries abroad recognize same sex marriage. DOMA itself sought to exclude the possibility of allowing same sex marriage by excluding it from the definition of marriage. Certainly, some States in the U.S. and some countries abroad have provisions similar to DOMA while in other jurisdictions there simply is no provision allowing same sex marriage.
In my work over the course of many years, I’ve helped couples navigate the U.S. immigration rules as to marriages and divorces. In general, marriage is according to the laws of the place where the marriage occurs. If, for example, same sex marriage is lawful in Thailand, then a U.S. citizen and a Philippines fiancé should be able to marry in Thailand and have it be a valid marriage for U.S. immigration purposes even though the Philippines does not allow same sex marriage. In this situation, it should still be possible for the foreigner to return to the Philippines after a marriage in Thailand and immigrate to the U.S. on a CR spouse visa through the U.S. consulate in Manila.
A separate concern is the State in which the U.S. citizen resides. Will the U.S. government allow a foreign spouse in the Philippines to immigrate to the U.S. and reside in Texas where same sex marriage is currently not permitted? Ultimately, I think the answer should be, yes, in accordance with Federal Equal Protection guarantees, but this remains to be seen. Certainly, if the foreigner was immigrating to a State that allows same sex marriage, such as California or New York, then there should not be a problem immigrating a foreign spouse from the Philippines to either of those two States. Immigrating to States that do not allow same sex marriage is more problematic, but I think doable.
Let’s break things down a bit to help with the analysis. I have a case where the foreigner came from Brazil to the U.S. on a B2 visitor visa years ago and overstayed. The couple married in New York which allows same sex marriage. Now, the couple moves to Georgia where same sex marriage is not allowed. Are they still married? The answer should be yes, because Georgia must respect the laws of other States, a concept called “comity”. Once the couple is married in New York, relocation to another State within the U.S. should not interfere with that marriage. The legal concept of comity is buttressed by principles of Equal Protection and Due Process embedded in the U.S. Federal as well as State constitutions. States have the right to define marriage. New York defined it to include same sex marriage, so the marriage is valid wherever the couple travels. Now, when the couple moves to another State, the couple should remain married and should be able to obtain a green card based on that marriage. Any attempt to interfere with that marriage would likely be struck by Federal rules. I will seek to apply to put the foreigner back into status as a permanent resident green card holder based on marriage.
The original example of a marriage in Thailand and immigrating to Texas has an added complication because the foreigner remains outside the U.S. during case processing, outside the purview of the US Constitution. The US citizen petitioner residing in Texas would need to press rights. However, Texas does not allow same sex marriage and so the U.S. citizen may have difficulty pressing rights since the Federal government no longer has the power to decide who is married and who is not married. The States have that jurisdiction and Texas does not allow it. The couple married outside the U.S. so there is no need for Texas to respect the laws of another State. The U.S. citizen will need to rely on Equal Protection principles to argue the Federal Government should recognize a lawful marriage in Thailand and allow immigration of the foreign spouse on a CR spouse visa. I think this is a winning argument.
Immigrating a Foreign Fiancé
Finally, there is the question of immigrating a foreign fiancé on a K1 fiancé visa for the purpose of marrying in the U.S. If the U.S. citizen resides in a State that does not allow same sex marriage, there may be some resistance from the immigration agencies who naturally look for problems and reasons to deny. Immigration officers are not paid to be supportive. In this situation, it will be important to show plans to marry in a State in the US that does allow for same sex marriage and also does not require residency status in that State in order for a marriage to take place there.
It’s important for same sex couples to discuss immigration with a qualified immigration attorney before proceedings. You want to set up your case by choosing a path of least resistance. Also, you need to be aware of the potential pitfalls before you start so that a sensible immigration plan is put forward. So many couples plow ahead with immigration, only later to find out they made a critical error that cannot be undone. Certainly, some cases will go on appeal, so you want to position your case to succeed and know the chances of success throughout case processing.
You are welcome to contact me if you like to discuss further.
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i want to marry my fiancee here in usa. how much is ur service she has 18 yr. old son. thanks
Allan Lolly says
Jo, Thank you for your inquiry. Can you please contact me directly regarding scope of services and fees? I must first understand what work is needed and then can quote a fee. For example, is it that you wanted to bring your fiancee to the U.S. on a fiancee visa together with the child and then marry in the U.S. on that visa? If so, then it can be possible to immigrate the child on a K2 dependent visa. If you want your fiancee to come to the U.S. on any other visa, then it will likely have the effect of denying the child the ability to immigrate. In most cases the marriage must occur before the child turns 18 for the child to be a dependent of the marriage. Please use the contact methods on this blog post and I will be glad to discuss directly with you. I hope to hear from you. Kind regards, Allan
I am currently a J1 visa holder and I am engage to a U.S citizen. We are planning to get married here in New York while I’m still here in the states. My visa expres on October 29 but we are panning to get married on November 10 which is already part of my “garce period” of my visa. It is still possible for our marriage to go on? Do I still need to go back to my own country still after our marriage during the proccessing period of petition for me to stay here in the states? Hoping you can help me. Thank you so much. Johnel
Allan Lolly says
Johnel, Thank you. Does your J visa have a 2 year home restriction? If not, have you had any issues come up that are unusual regarding your J visa status? Sometimes foreigners can be questioned at the port of entry upon arrival, for example. If things seem uneventful, then very likely you can remain in the U.S. and adjust status from a J visa status to permanent resident based on marriage to a U.S. citizen. Please contact me if you would like to discuss further. Kind regards, Allan
Thank you for running this blog with such valuable information.
I’m currently in a same-sex relationship with a resident in California and have been together for the better part of the last decade. I’m Ecuadorian. Can we file for a K-1?
If so, aside from the usual economic requirements for a heterosexual K-1 request, is there any additional/different hurdles for same-sex couple planning on marrying/residing in California?
Allan Lolly says
Andrew, Thank you. To be clear, all visas are issued at overseas consulate posts. Do you reside in Equador and are you thinking of processing a fiancee visa through Guayaquil? The essential K1 requirements should be the same for a same sex marriage as compared to a heterosexual marriage. You should be able to immigrate and marry in California. Whether to process on a fiance or marriage visa depends on your situation. Consider a comparison:
If you have an interest in possibly working with me on case processing, I would be glad to discuss by phone. The contact information should be on this page. I hope to hear from you. Kind regards, Allan
My boyfriend really likes me and I like him back we are just 18/19 years old and he is a U.S. Citizen and wants to marry me but he is in college and doesn’t have enough money to sponsor me and he lives in a state where they are pretty racist and republican,so do I have any chance to get a green card based on our marriage? Because we really love eachother but I see that they ask bunch of stuffs like income and he is not able to provide all those things..and do I have any chance to get it in a republican state where they are racist? I mean I know I have to get married like NY but if we move to somewhere else where it’s not legal do I still have a chance to get a green card be that as it may I am in a state like Oklahoma,Georgia,Arkansas?
Allan Lolly says
D, Yes, you can still obtain a green card based on marriage so long as you marry in a State that allows same sex marriage, such as NY. You did not mention the State in which you reside. Whether you can be successful in obtaining a green card depends in part on your current immigration status and what visa you used to enter the U.S. and when you entered. As far as the income requirement, your fiance very likely needs a financial joint sponsor, which would be a family member or friend who qualifies and can help guaranty the financial sponsorship requirements. Do you have an interest in working with me on case processing? If so, you are welcome to call to discuss. I hope to hear from you. Kind regards, Allan
Jay Whitmeyer says
My question to you is , do you need residence status in Maryland to marry a same sex couple . I’m from Maryland and my Thai finance is of Thai nationality . We have taken the necessary steps and have filed all the papers having a lawyer both here in the states ( CT ) and also in Bangkok . His interview date in Bangkok is in July . The lawyer in Bangkok says everything is in order and looks good but was just wondering if there will be a problem getting married in Maryland where I reside and same sex marriages are legal
Allan Lolly says
Jay, I defer to the attorney you retained. Normally, a second opinion from an attorney is a paid consultation. If same sex marriage is legal in Maryland and you are a resident of Maryland, then there is not a problem marrying your Thai fiance when he arrives in the U.S. Even if Maryland did not allow same sex marriage, still, there are other places to marry in the U.S. It’s o.k. Kindly, Allan
Hi. I am a US citizen and my partner and I have plans of getting married here in the California. My partner is a resident of the Philippines and is currently a B2 visa holder. Should we decide to get married within the allowable period of her stay here, will she still be allowed to exit US territories after the ceremony? Or is it mandatory for her to stay within the country? Thank you very much.
Allan Lolly says
R, She can exit the U.S. and territories, but she would very likely not be able to reenter as a visitor due to the marriage. She would need a marriage visa rather than a visitor visa. Each visa has a particular purpose. Right now, she is a visitor only. Case processing for a marriage visa depends in part on where in the U.S. you are located. Figure it can normally take 8-12 months currently to process her back on a marriage visa. I encourage you to contact me to help sort out an immigration plan if you have an interest in working together with me. Very kindly, Allan