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Immigration Implications for Same Sex Couples

Many Immigration Implications for Same Sex Couples. On August 3rd, the U.S. Department of State sent a cable to posts throughout the world outlining the next steps for immigration related issues for same sex couples. This cable clarifies many issues for same sex couples and family members.

Beginning immediately, visa applications filed by a same-sex spouse will be reviewed in the same manner as those filed by an opposite-sex spouse (unless a specific provision of the immigration law requires otherwise). The definitions of "marriage" and "spouse", with their limiting language, have been deleted from the Foreign Affairs Manual. A same-sex marriage is now valid for immigration purposes, as long as the marriage is recognized in the "place of celebration." A same-sex marriage is valid for immigration purposes even if the couple intends ultimately to reside in one of the 37 states that do not recognize same-sex marriages. The same-sex marriage is valid even if the applicant is applying in a country in which same-sex marriage is illegal.

Starting immediately, same-sex spouses and their children are equally eligible for non-immigrant derivative visas. Same-sex spouses and their children (stepchildren of the primary applicant when the marriage takes place before the child turns 18) can qualify as derivatives where the law permits issuance of the visa to a spouse or stepchild. If an applicant is otherwise qualified, he/she may be issued a derivative visa starting now. Some NIV classifications require certain documentation before a visa issuance can take place (such as the spouses and children of F and M students, J exchange visitors, U victims of criminal activity, and T human trafficking victims).

These changes apply equally to the immigrant visa processing so that same sex spouses and qualifying children or stepchildren may apply for immigrant visas in the same manner as with opposite sex spouses and children or stepchildren. Even if same sex couples reside in countries where they are unable to marry, the non-U.S. citizen partner will be eligible to apply for a fiancé/fiancée visa after approval of the required petition. Further, these changes apply equally to same-sex spouses. For DV 2013 and DV 2014, same-sex couples should not be automatically disqualified for not including their same-sex spouse (or stepchildren) on their original entry, since those persons were not recognized as spouses for U.S. immigration purposes at the time of the entry (though the officer should be alert to potential fraud, as with any case in which a spouse is acquired after initial registration).

Keep current by visiting Miley & Brown, P.C., immigration lawyers in Dallas at www.mileybrown.com

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