2015 Old Blog

By Jake VanKersen, VISANOW Video Production Specialist

In just a few hours, the U.S. government will most likely be forced to shut down. We won't know for sure until tomorrow what will happen to each individual service that falls under the umbrella of U.S. immigration, but we do know a few things based on past government shutdowns and policies in place to protect certain government operations.

The harsh reality of U.S. immigration is if you want to start a new life in the United States, there is virtually no way for you to do it without immediate family or employer sponsorship. At best, you might be able to visit the United States through a B-2 visitor visa, which is a temporary (non-immigrant) visa that requires you to leave the country after a maximum stay of 6 months. These visas can be difficult to get approved, with rejection rates for certain countries as high as 60%. Citizens of nations of the Visa Waiver Program can temporarily enter the United States without a visa, but they are subject to the discretion of the border patrol officer and may have their visit cut short or denied at the entry point.

Thanks to the repeal of DOMA this June, U.S. citizens and green card holders can now petition their same-sex spouses to reside permanently in the U.S. However, some gay couples are now asking, "Will our marriage green card application be handled differently by USCIS officers because we're not an opposite sex couple?"

The good news is that gay couples should be treated no differently than the millions of other couples who have applied and been approved for a marriage green card. The green card application for same-sex couples requires no extra steps or special restrictions, so on the surface the process is exactly the same. There are only a few instances where gathering evidence for a same-sex marital relationship might be a bit different, which are outlined here:

Providing evidence of a same-sex marriage if your relationship has not been public

One key difference in preparing the application for a same-sex marriage green can occur when the couple has been forced to pursue roundabout ways to stay united in the face of discriminatory laws and social prejudice. All couples applying for a marriage green card must provide ample evidence that they live together in a marital relationship. Collecting proof can be more difficult for certain same-sex couples who have previously hidden their relationship from the government or from their families for obvious reasons. Additionally, some couples may have represented their relationship differently to the U.S. government in previous immigration documents.

According to VISANOW-retained attorney Anne Walsh, "Any issues same-sex couples may face in producing documentation of their true and valid marriage won't be new to us [at VISANOW], and there are many document options for us to use such as phone records, emails and letters, mail to the same address, photographs, joint travel documents, affidavits by friends/family, etc." Any and all accounts the couple holds jointly, from museum memberships to a Netflix account, can help build a case for their marriage. If the couple stayed under the radar due to safety threats, a police report or notarized statement could help their case. Regardless of their orientation, all couples must be prepared to provide extra evidence and a suitable explanation to USCIS if a certain area of their application is lacking.

Applying for a same-sex marriage green card when one partner has a non-immigrant visa or is in unlawful status

Because of past U.S. immigration restrictions, there used to be no legal way for U.S. citizens and LPRs to bring their same-sex partner to the United States permanently. There are currently many gay couples with one partner living in the United States on a temporary or non-immigrant visa, including those with expired visas, simply because it was their only option at the time to stay with their significant other.

Applicants can be disqualified from certain types of temporary and non-immigrant visas such as the B-2 and F-1 visa if they reveal their intent to stay in the U.S. In the past, some immigration lawyers advised gay bi-national couples not to marry, since having a legal spouse in the United States would be a good motivation for the applicant to immigrate permanently. Luckily this is no longer the case.

Plenty of opposite sex couples have applied for and won their marriage green card even when the foreign spouse arrived on a temporary visa. USCIS accepts the fact that intentions change as circumstances in your life change, including meeting and marrying someone while in the U.S. for a separate purpose. Unless your visa is expired, there should be no issue.

With expired visas or other unlawful status, there are several options including the provisional waiver of inadmissibility, a complex process for spouses of U.S. citizens with immigration violations that might otherwise bar them from reentering the U.S. Many LGBT and immigrant activist organizations are currently lobbying USCIS to take a reasonable and fair approach to complicated immigration situations that have arisen from previous restrictions on gay marriage in the U.S.

Obtaining a same-sex marriage green card when gay marriage is not legal in your state or in your partner's country

Immigration is a federal matter in the United States so it's only important that the federal government recognizes your marriage when dealing with immigration issues. State and local restrictions do not apply here as long as your marriage happened in a marriage equality state.

If the foreign national significant other resides in a country that bans gay marriage and he or she has had trouble getting a B-2 visitor visa in the past, remember that the K-1 visa or fiance visa is now an option. The K-1 fiance visa is available to all U.S. citizens who wish to bring their fiance(e) over to the United States provided they follow all the general rules of a K-1 visa application and marry within 90 days.

The October 2013 visa bulletin was released this week and as we predicted, the family- based F2A category for green cards was not current for very long. When the priority date falls back in time as it has for the F2A category it is known as "retrogression." The F2A category, which is designated for the minor unmarried children and spouses of green card holders, remains current through September 30, 2013 but it will retrogress for October and probably for much longer after that.

Not all United States visas are created equal. And when it comes to relocating to the U.S., citizens of countries with a high volume of immigrants must wait a great deal longer than others.