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U.S. Marriage and Fiance Visa Benefits for Same Sex and LGBT Couples

In the past, it was impossible for same sex couples to obtain United States immigration benefits in the same manner as different-sex couples. For example, until recently an American Citizen could not obtain a CR-1 visa, K-3 visa, or an IR-1 visa for his or her same sex spouse. Concurrently, there was a time when an American Citizen could not obtain a K-1 visa for a foreign fiancee or fiance, if the foreign national was of the same sex. These situations resulted from Federal regulations arising from the Defense of Marriage Act (also known as DOMA). Under the provisions of the Defense of Marriage Act the United States Federal government did not recognize same sex marriages. This prohibition on recognition of same sex marriage was even applied to those couples who had legalized a same sex marriage in one of the States which allow such unions. As a result of previous policies arising from implementation of DOMA same sex couples were barred from receiving many of the benefits the Federal government bestows upon different-sex couples. One notable benefit denied to same sex couples: family based immigration benefits i.e. visas.

On June 26, 2013 the United States Supreme Court handed down a decision finding Section 3 of the Defense of Marriage Act to be unconstitutional. Section 3 of DOMA is the provision which precludes the Federal government from recognizing same sex marriages, even same sex marriages performed in the various States allowing such unions. Upon the Courts finding that Section 3 of DOMA is unconstitutional many of the legal barriers imposed upon same sex couples came down. Therefore, it became possible for American Citizens to petition the United States Citizenship and Immigration Service (USCIS) for immigrant visa benefits such as Green Cards (Lawful Permanent Residence) for same sex spouses.

One issue that was less clear after the Supreme Courts decision pertained to foreign same sex fiances of United States Citizens. Due to the fact that the US fiance visa petition is based upon a bona fide intention to marry in the USA, not upon a marriage, there was initially some confusion as to whether or not USCIS would view LGBT K-1 petitioners in the same light as traditional petitioners. That stated, the issue was quickly clarified by statements made by the United States Citizenship and Immigration Service. As of the time of this writing, it is now possible for a United States Citizen to petition for K-1 visa benefits for a same-sex fiance in much the same manner as a different-sex fiance.

For some LGBT couples questions arise as to whether or not these recent changes in the law will have an impact upon couples where the foreign spouse or fiance is a transsexual. In the past, a transsexual fiance or spouse may have been able to obtain a US visa where the specific circumstances permitted the couple to be classified as a different-sex couple. With the Supreme Courts recent ruling that discriminating against same sex couples based upon Section 3 of the Defense of Marriage Act violates the U.S. Constitution it would appear that transsexual spouses and fiances of United States Citizens are now eligible for marriage and fiance visas as the legal distinction between different sex couples and same sex couples is no longer relevant to USCISs analysis and adjudication of such petitions.

For more detailed information please see: LGBT immigration.