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Now that same-sex marriage is legal across the United States, this means that same-sex partners everywhere have the same immigration rights that all couples have.
Immigration Options for Gay and Lesbian Foreign Citizens
There are two main options for gay and lesbian foreign citizens. The first is through marriage to a U.S. citizen. The second is by applying for asylum within the United States. Our firm proudly serves the LGBT community and we have extensive experience with both marriage cases and with asylum claims.
Gay marriage is legal throughout the United States. Fiancé visas are now available to all same-sex couples.
Are you in a same-sex partnership with a foreign citizen? You can request a fiancé visa for them just like anyone else.
These visas are for U.S. citizens who want to marry foreign citizens and have their wedding in the U.S. They are called K-1 visas. If your fiancé(e) has children that will be coming with him/her, then you will apply for the children to have K-2 visas.
For a fiancée visa, you must show that:
• You are a U.S. citizen.
• You plan to marry within 90 days of your foreign fiancé(e) entering the United States.
• You and your fiancé(e) are both free to marry. This means that any previous marriages must have been legally terminated by divorce, death, or annulment.
• You met each other, in person, at least once within 2 years of filing for the visa.
After the Fiancé(e) Visa is Issued
The fiancé(e) visa allows your bride or groom to enter the United States for 90 days so that your marriage ceremony can take place. After you marry, your spouse must apply for permanent resident status.
Children of Fiancé(e)s
If your bride or groom has a child (under 21 and unmarried), you can request a K-2 visa for the child.
Permission to Work
Honestly, this procedure is a bit of a mess. Once your fiancé(e) comes to the U.S., s/he can immediately apply for permission to work. The catch, though, is that it usually takes the immigration service about 90 days to actually send the card to your fiancé(e) and the card is only good for those 90 days anyway. So applying for permission to work is effectively pointless. Luckily, after you marry s/he can immediately apply for permanent residence.
What happens if we do not marry within 90 days?
Fiancé(e) status automatically expires after 90 days. It cannot be extended. Your fiancé(e) will have to leave the United States at the end of the 90 days if you do not marry. If s/he doesn’t leave, s/he could be deported.
International Marriage Broker issues
Did you meet your fiancée through the Internet, for example on a site such as
http://gaymarriageagency.com or http://onescene.com ? Depending on the way the site is set up, it is possible that you may need to provide some additional and documents with your immigration application in order to comply with the International Marriage Broker Regulation Act. For example, you may have to get some documentation from the website operator and you may need to provide your criminal history to immigration authorities. This is a tricky area. Here is some additional information.
For more information on the law, see the State Department’s page
Family Immigration Visa
If you have already married your partner, and you are both in the U.S., you go through the same visa process as all married couples. You would file what is called a “one-step” petition– this is the family petition and the application for residency at the same time.
Gay and Lesbian foreign citizens with a well-founded fear of persecution may apply for asylum once they are inside the United States. Thus, the first step is to obtain another kind of visa, for example, a tourist visa. It is not possible to apply for asylum outside of the United States.
This is confusing to many people because the U.S. does admit refugees. However, people are classified as refugees only by the United Nations through special refugee programs. There is no United Nations refugee program for countries of origin for most LGBT people. Therefore, the only option for claiming protection from persecution is to arrive in the United States and then make an application for asylum.