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The State of Same Sex Marriage Visa Petitions

pride-828056_1280Immigration has historically been tough for many, but definitely no less than for LGBT migrants and their loved ones. The recent legislature passed down by the Supreme Court – ruling that discrimination against same sex marriage is unconstitutional – has meant that gay couples across the United States are now able to get married in any state they want (previously, only 37 states recognized same sex marriages). But what does this mean for K-1 fiancé visa petitions?

At this time, to obtain a fiancé visa, the application has to be sent in by the US citizen a migrant intends to marry, and they have to be able to present the following evidence:

  1. The couple have to have met in person within the last two years
  2. They must get married within 90 days of the immigrating party’s arrival in the United States – and only after that can the application for change of status be filed and an immigrant visa be processed
  3. The relationship has to be shown to be genuine – affidavits from family and friends may be required, as well as recent photos and receipts/letters between the couple
  4. The US citizen must earn enough to declare an Affidavit of Support showing that their intended spouse will not become a public charge. This is on an exponential scale relevant to the number of dependents involved with the application.

Same sex marriage petitions have actually been legal in states that recognize gay marriage since 2013, after the Defense of Marriage Act (DOMA) was repealed by the Supreme Court; declaring that defining marriage as only “a union between a man and a woman” was unconstitutional. Soon after this decision, it was announced that both green card petitions for alien spouses and K-1 visa petitions would be recognized, and since then numerous petitions for same sex couples have been filed across the country.

Of course, the legalizing of gay marriage US-wide has – naturally – not been met with unanimous praise. Several states have been openly dismissive of the ruling despite it being illegal to not comply with it, and continue to assert they will not recognize any marriages that are petitioned or processed.

It also opens up a question; do these new marriage freedoms create a human capital flight problem? With the option to marry in any state, will there be a loss of talented workers in other countries as they choose to move abroad and find work in the US? Some say yes, despite there being evidence that even when people do migrate to the US – gay or straight – they still send money and other things back to their home countries to help out those family members and friends left behind. As well as that, there’s nothing to say they will stay permanently in the United States after they do get married.

Regardless, off the back of this new legislature same sex marriage visa petitions are expected to increase annually. If you’re interested in filing and wish to speak to an immigration attorney about it, or if you have any questions regarding K-1 fiancé visas, please call 512-215-5225.