Update on Sponsoring Same-Sex Partners

We have received several more inquires about sponsoring partners in same-sex relationships, and both the Department of State of CIS have provided updated information about these cases. For the first time, both the DOS and the CIS announcements included mention of sponsoring same-sex fiancée cases, as well as marriage cases.

Sixteen countries now have nationwide freedom to marry for same-sex couples, including Canada, several European countries, South Africa and Brazil. New Zealand and England will start allowing same-sex marriage next year. In the United States, same-sex marriages are permitted only in some states, but for immigration purposes, an alien same-sex spouse can be sponsored no matter where the marriage took place. If your marriage is valid in a U.S. state or foreign country where it took place, it is valid for immigration purposes.

In Canada, the Civil Marriage Act permitting same-sex marriages became law in 2005. Marriage laws in Canada do not have residency requirements, so same-sex couples who travel to Canada may get married there.

In Asia, same-sex marriage is still being discussed and there are no countries that allow it. If you want to file a marriage petition for your same-sex partner who lives in Vietnam, one option would be for your partner to come to the U.S. as a tourist, marry, and then return to Vietnam and go through consular processing there. Consular processing would probably be much less frustrating that dealing with CIS in the US in this type of case.

If you are a US citizen who is engaged to a same-sex partner in Vietnam, you may file a Form I-129F to apply for a fiancée visa. As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for the purpose of marriage.

What can you do if you are a US citizen and your Vietnamese same-sex partner is in the US legally as a tourist, student or temporary worker? You can marry and file the I-130 visa petition along with an application for Green Card.

If your Vietnamese same-sex spouse entered the US legally but overstayed his or her visa, you can still file for a green card from inside the U.S.

If your Vietnamese same-sex spouse entered the US without inspection, he or she would have to return to Vietnam to apply for a green card through consular processing. To avoid a 3 to 10 year re-entry bar, you may be able to file for a provisional waiver while you are in the US and wait here for the waiver to be approved before you leave the U.S. to use consular processing.

Same-sex petitions are a new area for immigration law but according to CIS and DOS officials, these petitions will be treated equally with the usual heterosexual visa cases. That means the usual forms will be required, along with the usual evidence of a genuine, committed relationship.

It must also be said that CIS and Consular officials are ordinary people and some of them may still hesitate to accept the idea of same-sex relationships. This will mean that some petitions will be subject to intensive scrutiny.

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Q.1. My same-sex spouse has children. Can they also be included with my spouse's case?
A.1. Yes, the children of foreign national spouses can be considered "step-children" of the U.S. citizens and can benefit from a petition filed on their behalf in the IR2 category. You and your spouse must have married before the child turned 18.

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Q.2. In the US, can priests or monks refuse to perform marriages for same-sex couples?
A.2. Yes. Religious institutions and clergy members can decline to perform same-sex marriages. In such cases, the couple would have to be married in a civil ceremony at city hall or by a civil servant such as a judge or authorized deputy.

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Q.3. In California, can a private business, such as a florist, photographer, or event space refuse to provide space or a service for a same-sex wedding?
A.3. No. California law does not permit business establishments to discriminate on the basis of sexual orientation.