Before late June 2013, gay and lesbian individuals in the United States who had a partner in another country were unable to petition for their loved one to come and join him or her in the United States. This was due to a discriminatory law, the Defense of Marriage Act (“DOMA”).
““[Alex Brophy] really knows his stuff. He guided us through the timing of our K1, coordinating when to apply, etc as we were traveling overseas for most of our waiting period. When we returned, he had hit the dates so perfectly that we went we had the K1 within a few weeks of his estimate. He never said anything that turned out to be anything less than exact, right down to his estimates on governmental wait times.””
Fortunately, DOMA was struck down by the Supreme Court in June 2013, the result being that if you are in a same-sex relationship and your partner lives outside the United States, one option for bringing them to the United States is through a K-1 fiancé(e) visa.
Since DOMA was struck down, we have successfully guided many LGBT couples through the process of for fiancé(e) visas and green cards through marriage. The process is slightly more complex for a fiancé(e) visa than for a typical marriage-based green card, but to assist you, below are questions and answers to commonly-asked questions about the process.
Q. Do I need to be a U.S. citizen to petition for my partner from another country?
A. Yes. Unfortunately, fiancé(e) visas are not available to the fiancé(e) of a permanent resident. However, if you are a lawful permanent resident, you may be eligible to naturalize and become a U.S. citizen. If you are not eligible to naturalize, you may be able to marry your partner and petition for them as your spouse.
Q. How is the fiancé(e) visa process different than a regular marriage-based green card?
A. There are many differences, especially in the way that they are processed, but the main fundamental difference is, unlike other paths to green card through marriage, you do not need to be married yet in order to apply for a fiancé(e) visa. The general requirements for a fiancé(e) visa are:
You and your partner must have seen each other in person within the last two years.
You and your partner must intend to marry within 90 days of their arrival in the United States.
Your partner is not otherwise inadmissible to the United States. Common reasons for inadmissibility include criminal records or prior unlawful presence in the United States or other immigration violations
Q. What steps are there to the process?
A. We generally describe the fiancé(e) visa process as a four-step process.
File paperwork and evidence of your relationship with United States Citizenship and Immigration Services (“USCIS”) and wait for USCIS approval.
File additional electronic paperwork with the Department of State and additional paperwork with the U.S. consulate or embassy in your partner’s home country and have your partner (and you if available and if the U.S. consulate or embassy allows it) attend consular interview.
Marry your partner within 90 days of their arrival in the United States.
File additional paperwork with USCIS to apply for your partner’s green card. This often will result in another interview, this time at USCIS.
Each of these steps carries with it its own potential pitfalls and difficulties. For that reason, many couples will retain us to make sure that the application process goes as smoothly as possible. To discuss your case with one of our attorneys, please click below.
Q. How long will this all take?
A. Every case is different, and consulates can have varying processing times. We generally advise clients to expect at least a 12-18 month wait until your partner can join you in the United States, but this can vary based on which consulate the case is assigned to. The exact processing time depends on how quickly USCIS is processing applications at the time you file, and the practices and policies of the U.S. consulate or embassy in your partner’s home country.
Q. My partner’s home country is very hostile toward gay and lesbian couples. Will that be a problem at the consulate?
A. Probably not. The person interviewing you at the consulate will be an American who works for the foreign service, and who is required to follow U.S. law. Under U.S. law, immigration rights are now available for gay and lesbian couples.
Nonetheless, it is always possible that you will be interviewed by an officer who has bias or prejudice against LGBT individuals. To avoid a possibility of this affecting a case, we work with our clients to document their relationships as thoroughly as possible and to prepare them for their consular interviews.
If you have a specific fear about interviewing in a specific country, there could be other options available to you, such as third country processing in which the foreign national partner is interviewed at a U.S. consulate or embassy in an alternate country. Third-country processing, however, is difficult to achieve. In those cases, we typically will ask the consulate to provide our client with a private interview (as opposed to an interview at the “window” in the consulate).
Also, even if same-sex marriage is not legal in your home country, that does not matter for U.S. immigration law. Therefore, even if you cannot get married in the foreign national partner's home country, because your marriage will be recognized under U.S. law, you may still petition for their fiancé(e) visa.
Q. What sort of evidence about our relationship should we submit with our petition?
A. We work with our clients to come up with a comprehensive list of documentation that is appropriate for their particular circumstances. The evidence can vary based on your relationship, but all couples should submit documentation showing that their relationship is “bona fide” -- that is, not entered into solely for the purpose of obtaining a green card -- and that you have seen each other within the last two years.
Q. How much will this all cost me?
A. For a quote for our services for a fiancé(e) visa, including a breakdown of government fees, attorney’s fees, and other potential expenses, please contact us by clicking the link below. While the process is certainly more expensive with an attorney, there are many common errors that are easy to make when you are trying to navigate the complexities of the process.
Q. I read this whole article but you didn’t answer my question!
A. Please keep in mind that everyone’s legal circumstances are different, and that the forms that must be filed with the immigration authorities are complex, so this is by no means a complete list of the potential issues that can come up. To speak to an attorney about your specific issue, please click below.