same-sex spouse

Applying For CR1 Visa For Same-Sex Spouse (LGBT)

On June 26, 2013, everything changed for same-sex couples in the United States. This is when the Supreme Court found a section of DOMA (Federal Defense of Marriage Act) unconstitutional and gave same-sex couples the right to marry. With 8.8 million people in America identifying as homosexual, overturning this law has benefited many couples. These couples can now apply for a CR1 visa for their same-sex spouse just like heterosexual people.

So, how does the legalization of same-sex marriage affect immigration benefits? Simply put: same-sex couples can now sponsor their foreign spouse or fiance by applying for a U.S. visa. This is a pretty big deal, right? Many couples who were blocked from being able to bring their foreign spouse to the U.S. can now rest assured that they will not be denied based on their same-sex marriage.

Alright, now lets get into who is eligible and what the process looks like to sponsor your new spouse.

Case Example:

Jessica is a U.S. citizen that met the love of her life Brandi during a summer vacation in New Zealand. They quickly hit it off but Jessica had to go back to the United States so they continued a long distance relationship. A year later, Jessica went back to New Zealand and they got married on the beach with close friends and family there.

When she got back to the U.S., Jessica submitted the I-130 Petition for Alien Relative to bring Brandi to Texas to live with her. Although she was concerned that she wouldn’t be eligible to file the petition because Texas doesn’t recognize same-sex marriage, she was eventually approved by USCIS.

If the state you live in doesn’t recognize same-sex marriage, you can still get approved. The Supreme Court made the decision to allow same-sex couples to marry which is a federal law. Guess what? Immigration benefits are part of Federal law as well.

USCIS considers what the laws were in the state that the marriage took place not the state where you now live.

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Do You Qualify To Sponsor Your Same-Sex Spouse?

The same USCIS criteria are used when assessing your eligibility to sponsor a foreign spouse that all couples have to meet. Before February 2011, many same-sex couples were denied the I-130 petition because of DOMA. Now you can request USCIS to reopen your case for reconsideration and it will likely be approved as long as you meet the other requirements.

CR1 Spouse Visa Requirements:

  • American spouse is a U.S. citizen or Lawful Permanent Resident (LPR)
  • You are legally married to each other
  • This is your only current marriage
  • The U.S. spouse can financially support the intending immigrant

If you meet the above criteria, congratulations! You can apply for a CR1 visa for your foreign spouse. Now it’s time to gather as much evidence on a bona fide marriage as possible. Remember, you still need to prove that your legal marriage is real and that you didn’t get married just for immigration benefits.

What Type of Evidence Can Show A Bona Fide Marriage?

  • Written statement from the U.S. spouse stating that the marriage is real
  • Photos of your trips together and the wedding/engagement
  • Federal income taxes showing your filing status as married (filing jointly or separately)
    • before filing jointly with a non resident alien, you should get tax advice from a professional because this may be subject to federal tax.
  • Birth certificate for child born of the marriage (adoption records work too)
  • U.S. financial records (shared bank accounts, credit cards, insurance)
  • Joint property ownership (home or car)
  • Records of communication (emails, Skype records, text messages, phone records)

The more evidence you have the better your odds of getting approved for the CR1 visa. USCIS is always looking for people who are committing immigration fraud through a sham marriage. So you must show that your marriage is real and you both are in it for love and not for a green card.

Foreign Partner’s Country Doesn’t Recognize Same-Sex Marriage

Since not all countries around the world recognize same-sex marriages, it may be difficult to get married in your foreign partner’s country. You may need to plan the wedding in an entirely different country to legally get married.

If this isn’t possible because of travel restrictions or finances, you have the option to apply for the K1 visa as an engaged couple. This may be an easier and faster path to a green card for your foreign partner.

Case Example:

Thomas is a U.S. citizen that met Julio while playing a video game online. He decided to meet Julio in Mexico after years of communicating with each other. Thomas quickly realized he was completely in love with Julio and proposed on the spot before he left Mexico. Since Mexico doesn’t recognize same-sex marriage, they decided to get engaged and file for the K1 visa.

During the interview, the couple were asked common K1 visa interview questions which they answered successfully. Julio was approved for the K1 visa and they both moved to California where they had their wedding. Since California recognized same-sex marriage, they were able to apply for a green card and prove their marriage was valid with a marriage certificate.

Since Julio couldn’t legally marry Thomas in Mexico, they decided to get engaged and apply for the K1 visa. This is a great option for anyone who lives in a country that doesn’t allow same-sex marriage or makes it a crime to be homosexual.

Countries That Recognize Same-Sex Marriage:same sex marriage world

Europe

  • Belguim (2003)
  • Denmark (2012)
  • England / Wales / Scotland (2013)
  • Finland (including Finish Lapland)  (2017)
  • France (2013)
  • Greenland (2015)
  • Iceland (2010)
  • Ireland (2015)
  • Luxumberg (2014)
  • The Netherlands (2000)
  • Norway (2009)
  • Portugal(2010)
  • Slovenia (2017)
  • Spain (2005)
  • Sweeden (2009)

Americas

  • Argentina (2010)
  • Brazil (2013)
  • Canada (2005)
  • Columbia (2016)
  • *Mexico (2010)
  • United States of America (2015)
  • Uruguay (2013)

Australasia

  • New Zealand (2013)

Africa

  • South Africa (2006)

The above countries passed laws that allow same-sex couples to legally marry. If your foreign spouse’s home country doesn’t permit you to marry, consider getting married in any one of these countries before giving up hope.

Immigrating From A Country Where Homosexuality Is Illegal

In some countries, it is not only unlawful for same-sex couples to get married but it can also be a crime. Many Muslim countries as well as India and China will throw someone in prison if they are found to be gay. It can be very risky to get married because you risk being caught and punished for simply wanting to marry the love of your life.

Case Example:

Daniel is a U.S. citizen from Florida who went to India for a 6 month business trip when he met Sanjeep. They quickly starting dating but kept their relationship as private as possible. They never showed any public displays of affection for fear of being put in jail. Before Daniel had to move back to the U.S., he asked Sanjeep to marry him. Sanjeep was overjoyed and accepted the engagement proposal right away.

Daniel filed for the I-129F petition for Sanjeep so they could get married in Florida where their marriage would be legal. After the interview, they were told they were approved. The immigration officer at the embassy in India only put the first initial and last name of Daniel on the K1 visa stamp. This was to protect Sanjeep from any scrutiny or backlash.

As you can see, it can be very difficult to be a gay couple in some countries. You are forced to hide your relationship in public for fear of what could happen. The consulate and embassies in these countries understand the danger and make exceptions to help protect you. If you’re not sure if the immigration officer is aware of the laws in your country simply ask that they not use the first name of the U.S. fiance or spouse.

Final Thoughts On Applying For A CR1 Visa For Same-Sex Spouse

Personally, I have a good friend that is homosexual and she is just fabulous. Although she is currently single, I’m glad that this country is open to those who have different sexual preferences. Everyone should be more open minded to differences and if you’re not, well, just keep it moving.

Same-sex couples have the same rights as heterosexuals all thanks to the Supreme Court ruling. This has definitely opened the doors for many couples who felt they were destined to a long distance marriage. But, you still need to prove that you have a real valid marriage whether you are straight or gay.

A gay couple has the same chances of visa approval as a straight couple with the same circumstances. USCIS cannot discriminate against you based on your same sex martiage. The CR1 visa interview questions will also be similar for all married couples.

In the event that your CR1 case is denied, you’ll first need to find out why and then apply for a waiver to overcome that reason. You also have the option to appeal the denial or just reapply. I always recommend to just reapply with more evidence because trying to overturn a decision made by an immigration officer is next to impossible.

Are you in a same-sex marriage? Have you already filed the I-130 petition for your spouse? Tell me what you thought of the process in the comments below.

Ayan is a Somali born Canadian who has successfully immigrated to the United States and is passionate about helping fellow immigrants move to the U.S. to pursue their dreams. Whether you’re applying for a visa, green card or naturalization; get real answers to your immigration questions.

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