USA Green Card Immigration Blog

Immigration Officials Try to Clarify Position on Gay Marriage – NYTimes.com.

An announcement by immigration officials in Washington on Monday that they were delaying decisions on some immigration cases involving gay couples led to a surge of expectations among gay advocates that the Obama administration had taken a small but significant step toward recognizing same-sex marriage.

But on Tuesday, immigration officials moved swiftly to clarify their position and dampen those hopes, saying they have not made any policy changes that would provide an opening to gay couples. The episode added to the legal confusion that has followed the administration’s determination last month that the law that bars the federal government from recognizing gay marriages, the Defense of Marriage Act, is unconstitutional.

In this case, the misunderstandings and soaring hopes arose from an effort in recent days by officials at Citizenship and Immigration Services, the federal agency that awards immigration status, to clarify their policy on granting permanent residency green cards to immigrants legally married to American citizens who are gay. While it is routine for American citizens in heterosexual couples to obtain green cards for their foreign spouses, the Defense of Marriage Act has barred such status for immigrants in same-sex marriages.

That situation has long been a focus of criticism by gay rights groups, who argue that the law is particularly discriminatory against immigrants. “If you are in a bi-national couple that is heterosexual, you get to stay here and work here,” said Richard Socarides, a lawyer who is president of Equality Matters, a gay rights advocacy group. “If you are gay, you get deported.”

In February, President Obama and Attorney General Eric H. Holder Jr. announced that the administration would no longer defend the Defense of Marriage Act in the courts, although it would continue to enforce the law, which was adopted in 1996, until it is changed by the courts or by Congress.

The position has led to a host of dilemmas for federal agencies that continue to enforce the law. This month, Immigration Equality, a group that advocates for immigrants in gay couples, wrote to immigration officials urging them to suspend deportations of immigrants in same-sex marriages and suspend other cases involving gay couples until the courts render a final decision on the constitutionality of the Defense of Marriage Act.

The most recent crossed signals started at meetings last week between immigration lawyers and officials from Citizenship and Immigration Services. The officials said that some cases involving gay married couples had been suspended while the agency sought guidance from its lawyers about issues related to the marriage act.

On Monday, Christopher S. Bentley, the chief spokesman for the immigration agency, confirmed in a statement that cases nationwide involving married gay couples had been suspended. What Mr. Bentley did not say was how long that hold might last and what issues the agency was seeking to clarify.

But the elated reaction among gay advocates and couples was immediate. Describing Mr. Bentley’s statement as “a darn big deal,” Rachel B. Tiven, the executive director of Immigration Equality, called it “the first domino to fall” for gay American citizens with foreign spouses.

Ms. Tiven said she understood that immigrants in married gay couples could now apply for green cards and instead of being automatically denied, their cases would be suspended until the courts decided the validity of the marriage act.

Word also went out across the country. In Princeton, N.J., Josh Vandiver and Henry Velandia, in the middle of a public forum on immigration issues, embraced and cheered. They said they had heard from their immigration lawyer that the agency’s announcement might mean at least a temporary reprieve from deportation for Mr. Velandia.

Mr. Vandiver, 29, is an American citizen and a political science graduate student at Princeton. He and Mr. Velandia, 27, who is from Venezuela, were married last August in Connecticut, one of the states that recognize same-sex marriages. Their application for a green card for Mr. Velandia was recently denied, and he is facing deportation as early as May.

But on Tuesday, Mr. Bentley issued a new statement, saying that Citizenship and Immigration Services “has not implemented any change in policy and intends to follow the president’s directive to continue enforcing the law.”

Mr. Bentley said the agency’s field offices had suspended cases for a short period, perhaps a week or two, while lawyers clarified a “narrow legal issue” concerning the marriage act. He said the agency would probably resume action on same-sex marriage cases in coming days and would continue to deny immigration status to foreigners based on those marriages.

Immigration lawyers tried on Tuesday to sort out the meaning of the events.

“We have to be very cautious,” said Lavi S. Soloway, a lawyer who represents Mr. Velandia and Mr. Vandiver. He said gay couples should continue to understand that “if they file for immigration status, they may be putting themselves at considerable risk of deportation.”

Mr. Velandia, a dancer, formed a dance company in Princeton, HotSalsaHot, and teaches salsa classes there.

Mr. Vandiver said he and Mr. Velandia do not see an alternative to living in the United States.

“The prospect of Henry’s deportation is extremely frightening,” he said. “We are committed to staying together, but the world is really closed to us. We both think it’s dangerous to return to Venezuela as a same-sex married couple.”

The K-1 visa petition can be filed by U.S. citizens who wish to marry their foreign national fiancé (male) or fiancée (female) in the U.S. To apply for the U.S. Fiancée Visa both the partners should either be unmarried or their previous marriages should have been legally settled through a divorce, annulment, or death of their prior partner.

The individual applying for the K-1 visa is required have to met with person intended to marry within the previous two years. Although, if there is any long followed custom or tradition that would violated and pose a hardship in your meeting, this requirement can be exempted. It is also mandatory that the marriage should take place within 90 days of your fiancé / fiancée entering the United States. The US Fiancée Visa also has provisions to accommodate your fiancé/ fiancée children in the United States who are below 21 years and are unmarried.

Application of fiancé visa / fiancée visa (K-1 visa) is not mandatory for legal permanent residents. They can very well apply for immigration even after the wedding.

The U.S. marriage visa can be obtained at the U.S. Embassy or consulate abroad, once the petition is approved. Until the arrival in the United States, the fiancé / fiancée are required to remain unmarried.

In occasions when any of these rules are violated, the fiancé / fiancée will be notified to leave the United States. They will be treated as a nonimmigrant until the marriage takes place. An extension to the 90 day original nonimmigrant U.S. marriage visa is also not entertained.

There are several ways to check the status of K-1 visa. One can check it online, by phone, or by contacting the suitable USCIS office. In case, the petition is denied, it can be reapplied within 33 days of receiving the denial mail.

The green card, also known as the United States Permanent Resident Card, is one of the most valuable documents in the world that authorizes an immigrant to work and live permanently in the U.S.  A green card is mandatory for you to become a Lawful Permanent Resident (LPR) of U.S.  An individual who marries a U.S. citizen is also eligible for a green card.

Getting a green card through marriage is a multi-step process.  If you live in U.S. and want a green card for your spouse, then you must fill an I-130 petition for alien relative with the U.S. Citizenship and Immigration Services (USCIS) along with proof of your relationship.  In addition, you should submit Form I-485, a marriage green card application for adjustment of status (AOS) to get a permanent resident card.  While filing the petition, you also need to produce documents like a spouse’s U.S. citizenship, biographical forms for husband and wife with photos attached, and marriage certificate.  The USCIS has the right to approve or deny the petition based on the evidence submitted.  Once it is approved, the USCIS will advise you and then, send the approved visa petition to the Department of State’s National Visa Center for visa approval.  The petition will remain in the center until it issues a visa number to the U.S. embassy or consulate.  An immigrant visa number is provided based on a preference system.  Immediate relatives like parents, spouses, and children under the age of 21 are given first preference.  As soon as you get an immigrant visa number, your foreign spouse is eligible for an immigrant visa.  Before getting an immigrant visa, your spouse must undergo a medical examination.  The consular officer chooses a doctor for examining the applicant, and he/she must pay the fee for the doctor along with the visa fees.  Immigrant visas will not be issued if the spouse has a communicable disease, or a dangerous physical or mental disorder.

After an immigrant visa is issued for your foreign spouse, the final step is to change his/her status to permanent resident.  If an immigrant visa number is available, the USCIS will accept and process the I-485 form submitted along with the I-130 petition.

The USCIS will conduct a series of checks on the background of the applicant.  Once the adjustment of status application is accepted, your spouse is allowed to reside in U.S., but he/she is not allowed to leave the country until the application is approved or rejected.  In some cases, the applicant is also called for an interview with the USCIS.  If the application is approved, your spouse becomes a LPR, and the green card is mailed to the applicant.

If you have married a foreign spouse, who lives outside U.S., then you can apply for a K-3 non-immigrant visa. For a non-immigrant visa, you need to file I-129 petition with the USCIS.  It will take approximately 5 to 8 months to get the K-3 spouse visa.  The visa is valid up to two years and it offers complete freedom to your spouse to live, work, and study in U.S while he/she is waiting for her green card approval.  Apart from K-3, the spouse of a U.S. citizen can also enter the country with a B-2 visitor visa.

That is the lengthy process in a nutshell.