Since the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) in U.S. v. Windsor in June 2013, immigration benefits available to heterosexual couples are also now available to same-sex couples, including obtaining a K-1 nonimmigrant visa for a foreign fiancé(e).
The K-1 visa, also known as fiancé(e) visa, allows a U.S. citizen to bring a foreign national fiancé(e) into the United States.
Almost six months after the Windsor ruling, the U.S. Embassy in the Philippines granted to Noel “Aeinghel” Amaro and Robert Cotterman, its very first fiancé visa issued to a same-sex couple. Robert Cotterman is a member of the U.S. military. They also issued a visa to another couple, Maria Cecilia Limson Gahuman and Maria Carla Antonio, a U.S. citizen.
The K-1 fiancé(e) visa process starts with the filing of a petition made on Form-129F with the United States Citizenship and Immigration Services (USCIS). Before the USCIS approves the K-1 petition, the petitioner and the beneficiary must satisfy certain requirements.
First, the parties have to prove that they have previously met in person within two years prior to filing the petition, unless a waiver is granted. Secondly, they must prove that they have a good faith intention to marry each other. Lastly, they have to prove that they are free to enter into a valid marriage in the U.S. within 90 days from the fiancé(e)’s arrival.
The parties must marry during the 90-day period. If not, the beneficiary will have to return back to his/her home country. No extension of stay is permitted. If they get married during that time frame, the beneficiary can then apply for permanent residency here in the U.S. and will be given the two-year conditional status.
If the K-1 beneficiary has children, the minor unmarried children may also enter the U.S. on a K-2 visa and apply for permanent residence just like the fiancé(e) parent. They should be included in the I-129 form as accompanying or following to join the beneficiary.
Under the International Marriage Broker Regulation Act (IMBRA), K-1 petitioners must disclose information about any criminal convictions for specified crimes such as domestic violence, child abuse, stalking and sexual assault. They are also required to inform the USCIS of the involvement of any international marriage broker.
Approved K-1 petitions are forwarded to the National Visa Center (NVC). The NVC will then forward the cases to U.S. embassies abroad and will notify applicants by mail when it does. The NVC reports that from July to September 2014, it received around 2,600 fiancé(e) visa cases every month.
The beneficiary will need to pay the visa fee before scheduling an appointment for visa interview. The beneficiary must bring following documents during the interview: DS-160 confirmation page, valid passport, birth certificate, evidence of termination of prior marriages, certificate of no marriage record, if applicable, police clearance or certificate, medical examination record and financial records to show that he/she will not become a public charge, among others.
In instances where the beneficiary comes from a country where same-sex relationships are banned or declared unlawful or where public knowledge of the relationship could put the beneficiary in danger or at risk of physical harm, the beneficiary or his/her attorney may request the NVC to forward the case to a U.S. consulate in another country other than where the beneficiary is residing.
According to Secretary of State John Kerry, “The State Department, which has always been at the forefront of equality in the federal government… is tearing down an unjust and unfair barrier that for too long stood in the way of same-sex families being able to travel as a family to the United States.”
At present, same-sex couples can marry in 36 states, namely, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Indiana, Illinois, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Jersey, New Hampshire, New Mexico, North Carolina, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming. They can also marry in Washington, D.C.
Although a federal court in Alabama struck down as unconstitutional the state’s ban on gay marriage, the Alabama Supreme Court on March 3, 2015 ordered the probate judges to stop issuing marriage licenses to same-sex couples. The case will ultimately be decided by the U.S. Supreme Court. Oral arguments on the constitutionality of same-sex marriage bans in Ohio, Michigan, Kentucky and Tennessee are also scheduled to be heard before the U.S. Supreme Court next month.