Before late June 2013, gay and lesbian individuals in the United States who had a partner in another country were unable to petition for their loved one to come and join him or her in the United States.  This was due to a discriminatory law, the Defense of Marriage Act (“DOMA”).  Fortunately, DOMA was struck down by the Supreme Court in June 2013, the result being that if you are in a same-sex relationship and your loved one lives outside the United States, one option for bringing him or her to the United States is through a K-1 fiancé(e) visa. 

Since DOMA was struck down, we have successfully guided many LGBT couples through the process of petitioning for green cards through marriage.  The process is slightly more complex for a fiancé(e) visa than for a typical marriage-based green card, but to assist you, below are questions and answers to commonly-asked questions about the process. 

Please keep in mind that everyone’s legal circumstances are different, and that the forms that must be filed with the immigration authorities are complex, so this is by no means a complete list of the potential issues that can come up.  If you have a specific question that is not answered below, or if you would like to consult with us about your specific case, please call us at (212) 203-0557 (NY) or (215) 558-7600 (PA), or e-mail us.

Q.  Do I need to be a U.S. citizen to petition for my partner from another country?

A.  Yes.  Unfortunately, fiancé(e) visas are not available to the fiancé(e) of a permanent resident.  However, if you are a lawful permanent resident, you may be eligible to naturalize and become a U.S. citizen.  Please contact us for more information about eligibility for naturalization. 

Q.  How is the fiancé(e) visa process different than a regular marriage-based green card?

A.  There are many differences, especially in the way that they are processed, but the main fundamental difference is, unlike other paths to green card through marriage, you do not need to be married yet in order to apply for a fiancé(e) visa.  The general requirements for a fiancé(e) visa are:

1. -    You and your partner have seen each other in person within the last two years (note that there are exceptions to this requirement - please contact us to learn more about such exceptions).
   

2. -    You and your partner intend to marry within 90 days of his or her arrival in the United States.
   

3. -    Your partner is not otherwise inadmissible to the United States.  Common reasons for inadmissibility include criminal records or prior unlawful presence in the United States.  If you have concerns about your partner’s admissibility, please contact us to arrange a consultation.  
   

17. Q.   What steps are there to the process?
    

A.    We generally describe the fiancé(e) visa process as a four-step process. 

1. 1.File paperwork with United States Citizenship and Immigration Services (“USCIS”) and wait for USCIS approval.
   

2. 2.File additional electronic paperwork with the Department of State and additional paperwork with the U.S. consulate or embassy in your partner’s home country and have your partner (and you if available and if the U.S. consulate or embassy allows it) attend consular interview. 
   

3. 3.Marry your partner within 90 days of his or her arrival in the United States (note that the marriage must be performed in a state that recognizes marriage equality, such as New York or New Jersey). 
   

4. 4.File additional paperwork with USCIS to apply for your partner’s green card. 
   

17. Q.  How long will this all take?
    

A.    Every case is different, but expect at least a 6-9 month wait until your partner can join you in the United States.  The exact processing time depends on how quickly USCIS is processing applications at the time you file, and the practices and policies of the U.S. consulate or embassy in your partner’s home country. 

Q.    My partner’s home country is very hostile toward gay and lesbian couples.  Will that be a problem at the consulate?

A.   Probably not.  Remember, the U.S. consulate  or embassy is staffed by Americans who work for the foreign service, and who are required to follow U.S. law.  Under U.S. law, immigration rights are now available for gay and lesbian couples.  We have not seen reports of problems with U.S. consulates or embassies correctly processing same-sex fiancé(e) visa petitions.  

If you have a specific fear, there could be other options available to you such as third country processing in which your partner is interviewed at a U.S. consulate or embassy in an alternate country.  Please contact us for further details. 

Also, even if same-sex marriage is not legal in your partner’s home country, that does not matter for U.S. immigration law.  Therefore, even if you and your partner could not get married in his or her home country, because your marriage will be recognized under U.S. law, you may petition for his or her fiancé(e) visa.

Q.    What sort of evidence about our relationship should we submit with our petition?     

A.    We work with our clients to come up with a comprehensive list of documentation that is appropriate for their particular circumstances.  The evidence can vary based on your relationship, but all couples should submit documentation showing that their relationship is “bona fide” -- that is, not entered into solely for the purpose of obtaining a green card -- and that you have seen each other within the last two years. 

Q.    How much will this all cost me?     

A.    At a minimum, expect to pay about $1,600 throughout the process for various fees due to USCIS and the Department of State.  Also, we highly recommend hiring an attorney to help with the process; for a free quote for our services for a fiancé(e) visa, please contact us.  While the process is certainly more expensive with an attorney, there are many common errors that are easy to make when you are trying to navigate the complexities of the process. 

Q.    I read this whole article but you didn’t answer my question!

A.     There are as many possible questions about the fiancé(e) visa process as there are different couples, each of whom has unique circumstances.  Some of your questions may be answered by our other recent article about LGBT immigration.  Otherwise, please contact us for a free phone consultation about your individual matter. 

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Since DOMA was struck down, Kate Lenahan has filed successful immigration petitions, including petitions for fiancé(e) visa, on behalf of numerous same-sex couples who waited for too long for equality in United States immigration law.  Prior to DOMA’s defeat, Kate helped many same-sex bi-national couples prepare for the decision, while at the same time working with such couples to find alternate ways of staying in the country, such as asylum or non-immigrant visas. 

Kate began to focus on LGBT immigration issues when she was a Legal Fellow at Immigration Equality, a non-profit organization that is dedicated to providing legal services to LGBT immigrants.  E-mail or call Kate to set up a free phone consultation about your immigration issue.     

Copyright 2014 Brophy & Lenahan P.C. 

All rights reserved.

    The article above is intended to provide general information.  It is not legal advice and should not be used as legal advice.  For legal advice on your particular issues, you should consult with an immigration attorney who can familiarize himself or herself with your specific issues.