How do Consular officers decide if a same-sex relationship is genuine?

The same way that they tell if any other claimed relationship is real:  They talk to the applicant, asking the same questions they would ask of any heterosexual couple.  If the petitioner comes to the interview, they observe the couple together.   They consider everything and decide if the relationship appears to be genuine.   If it does look genuine, then they will issue the visa.

A same-sex couple can live in any state.  If the marriage of a same-sex couple is valid in the U.S. state or foreign country where it took place, then it is valid for immigration purposes.    

Vietnam now allows same-sex couples to celebrate a wedding, but does not allow them to register a marriage.  Thus, the Vietnamese wedding celebration is not helpful for immigration purposes.     The solution is to apply for a fiancée visa.

Evidence brought to Visa Interviews:  Tourist visa applicants who are denied a visa often complain that the interviewing officer did not consider all the evidence they brought to the interview.   They say, “The officer didn’t even look at my documents”.  The reply from the officer is, “Yes, but I interviewed you”.

There is nothing about a piece of paper that will tell an officer if the visa applicant intends to return to Vietnam when his US visa expires.  A bank book, a job letter, car title, house papers: none of it means anything.   If the applicant intends to remain in the US permanently, he or she will gladly leave everything behind in Vietnam.  The officer’s job is to interview applicants, not to shuffle papers.

The Obligations of the I-864 Affidavit of Support:   The I-864 is an affidavit promising to support the immigrant, so that the immigrant will not have to rely on government assistance to pay for food and bills.   By signing the Affidavit of Support, the sponsor agrees to support the immigrant at 125 percent of the federal poverty level.

How does a divorce change the sponsor’s I-864 obligations?  It doesn’t.  The sponsor is still obligated to support his ex-spouse at 125% of the poverty level.   This obligation remains in force until the foreign spouse becomes a U.S. citizen, or works for 10 years in a job through which they pay into the Social Security system, or fails to keep the permanent legal residency status.

 The Supreme Court Will Review “Consular Non-reviewability”:   Recently we reported on the fact that the decisions of consular officers cannot be appealed in the courts in the US.  “Consular non-reviewability” means that if a consular officer denies an applicant a visa, the courts in the US have no authority to overturn this decision.

So, if a consular officer denied the application without explaining why, or without sufficient reason, the US citizen sponsor would not be able to bring the matter to US Federal Courts.    A Federal court in the US has no jurisdiction over the decision of a State Department consular officer.  

The case of Kerry v. Din is about a US citizen wife who is married to a man who is a citizen of Afghanistan.   USCIS approved the I-130 petition but at the visa interview in Afghanistan, the husband was denied a visa.   Nine months after the interview, the US Consulate still did not give a clear reason for the denial, and said that there was no possibility of applying for a waiver.

This month, the U.S. Supreme Court will hear arguments in the case of Kerry v. Din.

The Court will decide on the limits of “non-reviewability” in immigrant visa cases petitioned by a U.S. citizen relative.  The court’s decision is expected within a few months.

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Q.1.  If my foreign spouse and I divorce, and she re-marries, and again is divorced, am I still obligated to support her at 125% of the poverty level?

A.1.  Yes, if your foreign spouse is divorced a second time, your obligations to the I-864 Affidavit of Support will continue after that second divorce.

Q.2.   Do same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization?  

A.2.  Same-sex marriages are treated exactly the same as opposite-sex marriages, meaning that the same-sex foreign spouse can apply for Naturalization three years after receiving a Conditional Green Card.

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Q.3. If it is necessary to appeal a denial of an immigrant visa, what is the best way to get started?

A.3.  You should choose an immigration practitioner who has a good relationship with the consulate and who can communicate with the consulate effectively (not confrontationally).