New York Lawyer's Legal Updates

K1 for Same Sex Couples (LGBT Fiancé Petition)

Author: US Immigration Attorney Alena Shautsova

With the US Supreme court decision in United States v. Windsor, the US recognized federal benefits in connection with same sex couples. To wit, the US government allowed family sponsored immigration for same sex unions. Gay spouses are allowed to sponsor their loved ones for adjustment of status, immigrant visas; may qualify as “relative” for immigration purposes in connection with various waivers and hardships, as well as bring their partners to the US on fiancé visas.

Like any other petitioner, a gay petitioner who would like to invite his/her prospective spouse to the US on K-1 visa, has to demonstrate a). that he/she has met prospective spouse in person within the past two years in person at least once (or apply for a waiver of the requirement); b). that both partners intend to get married within 90 days of arrival of the non-citizen partner; and attest c). that he/she will provide support to the non-citizen spouse during that spouse’s stay in the US.

The particularities of the same sex K-1 petitions come from the fact that not all US states allow same sex marriages and not all foreign countries (Russia, for example) are tolerant to the same sex unions. As a result, it is important to follow USCIS guidance in connection with such filings.

Some countries have very positive policy regarding LGBT community: for example, the Supreme Court of India insists on legal recognition of a third gender “other” and states that it is up to the person to choose the gender, without the need of ongoing or planned surgeries.

Unfortunately, sometimes a beneficiary of K-1 visa abroad can be stressed out about the fact that the name of the perspective spouse has to be printed on the US visa. Judging by the name, it can be guessed, that a US citizen spouse is of the same sex. If it is a concern, it is possible to ask the consulate not to print the full name of the petitioner. This allows avoiding potential safety concerns.

Same is true for requests to change the location for the K-1 visa interview. Here, however, a prior consent of the consulate in a new location is needed, as the new post is not obligated to accept LGBT applicant not at the country of his/her permanent residency and may deny the request.

K-1 process starts with submission of the I -129F petition. A through documentation as to the development of the relationship has to be presented as well. If the petition is approved, the documents will be sent to the National Visa Center which, very quickly should forward the file to the consulate.

Please contact office@shautsova.com to request a detailed consultation with an attorney.

16 October 2014
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