RECAP: Live Facebook Chat Event on Immigration Benefits for Same-Sex Couples with Elizabeth Blandon

Immigration, LGBT, Relationships, Rights

Same-sex immigration questions-banner On Thursday August 29th, Florida attorney, Elizabeth Blandon of Blandon Law joined us for a live Facebook chat event to answer consumer questions about immigration benefits for same-sex couples. Below is recap of the Q&A session. If you have a question about immigration laws post DOMA, visit Avvo’s free Q&A forum and post it for attorneys in your area to answer.

Question from Tacoma, WA: I’m a US citizen and would like to sponsor my fiancé’s two children to come to the US so our family can be reunited before we move to Oregon. Does it hurt their chances of obtaining a visa if I’ve never met her children? Will moving to a state that doesn’t recognize same-sex marriage make it more difficult as well? Should we stay in Washington until the visas are granted?

Answer from Blandon Law:
First, until the children are related to you (for example, as step-children), you can’t sponsor them. So, that would be a good start. As to the second question, to bring them here you need to demonstrate that the relationship to the children’s parent is valid. It’s not so important that you have never met the children, although you can bet that they will ask that question.
Moving to a state that doesn’t recognize same-sex marriage doesn’t matter. Immigration is federal law. For example, although I am an attorney of Florida and Pennsylvania, I attend hearings and interviews throughout the U.S. And finally, in order to avoid delaying paperwork, it’s a good idea to avoid moving while an immigration case is in process. If you’re not decided on moving yet, though, start the case.

Question from Seattle, WA:
Friends were legally married in Washington state but now live in Idaho… will their immigration benefits be recognized? (One is from Norway, the other from WA)

Answer from Blandon Law:
Because Washington recognizes the marriage, it will be recognized for purposes of a green card or any other immigration benefits, yes.

Question from Modesto, CA:
My proposed spouse lives in Peru and I am a citizen of USA. We will meet in Argentina to marry. After the marriage he will return to Peru and I will come home to begin the process. I would like to make sure the marriage will be accepted for the I-130. Any idea how long this process will take before he can come home. Any suggestions or warnings?

Answer from Blandon Law:
This is a lengthy process and my single most important warning is that you know that in advance. Any mistakes along the way will only delay the process more. You will be sending a petition to Citizenship and Immigration Services. If approved, they will forward it to the National Visa Center. There, they will request fees and documents, in original. Then, your spouse will have to get documents from Peru. Finally, he will go to an interview in Peru, get a visa and enter the country.

This can take anywhere from 6 months (fastest case in our office) to [who knows] depending on how quickly documents are provided to the government.

Question from Walnut Creek, CA:
My husband and I met while he was in the US on holiday. While he was there for the six months on his tourist visa we began date but did not really consider it to be serious since we had no way to be together (pre-DOMA). Once he returned to his country, we found both decided that we valued the relationship too much to let it go, and he applied for an F-1 visa so we could try dating seriously. He was granted an F-1 and he moved in with me shortly after beginning school. He will be at the end of his F-1 visa this year and we have been trying to work out how to stay together for most of the last year. When the DOMA ruling came down, we decided that this was the time to get married. Will the fact that he knew me before he came here on a F-1 visa be an issue?

Answer from Blandon Law:
That fact alone is not enough to get a case denied. His “intent” was to study. He didn’t come here to marry you. It’s all good.

Question from Chicago, IL:
My domestic partner came to the USA on a J-1 visa subject to a home stay requirement. Given Windsor striking part of DOMA we now can get married. He is in overstay status as his visa expired long ago. (1) If we apply for a waiver and his home country declines to issue a no objection letter (and no other waiver of home stay is available) will the USA then order his deportation? Will he be permitted to leave voluntarily or perhaps continue to live with me in overstay status? (2) if he leaves the USA and we wait two years to apply for re-entry is it better that we marry now before he leaves or is a fiancé visa just as likely to be granted? Will him leaving the country with a denied waiver and known overstay status (negative stamp in USA database?) prevent later visa even if we marry?

Answer from Blandon Law:
A foreigner probably will not be put in deportation proceedings just because the home country does not issue a “no objection” letter. Our government simply doesn’t know when that happens. Those letters are issued by embassies of foreign governments. Whether you marry before or after he leaves is a personal decision. The home stay requirement still applies. So, for 2 years, even if married, he cannot come back.

There may be other options. Please consult with an experienced immigration attorney before making any decisions such as leaving. OVERSTAYING and leaving has serious consequences. He may be barred for 3 or 10 years from returning.

Question from New York, NY:
I was selected on May 1, 2012 for further processing and I had my interview at the embassy on July 2, 2013. The interview was successful and the Consul said to me that my docs are OK and I should be issued the visa right away. But, the problem is that just a few days before my interview date, DOMA was struck down by the Supreme Court and there are changes on immigration policies on gay couples. I am legally married (we’re a same-sex couple) in the country where I reside since 2006. On the e-DV form and DS 260, I put single as at that time the law didn’t allow me to include my partner. Now my visa is on hold waiting for Washington DC guidelines. How long should I wait? As Sep. 30 draws closer, if Washington is slow to answer, will I never get the visa even the interview was successful?

My application is not under Administrative Processing 221g or temporarily refused, in fact I would have been issued the visa on the day of interview, but the Embassy needs to consult to Washington DC (I imagine, it is the USCIS), on how to include my partner in my application. I think it is not fair to deny me the visa because I didn’t include him in it as DV 2013 instructions clearly stated that same-sex partner cannot be included as DOMA was in force at the time of e-DV filing period and my DS 230 form was sent to KCC.

Answer from Blandon Law:
This is a case that DEFINITELY cries out for professional help because you are facing a deadline. If you do not submit what you must before then, you might lose benefits. Stating that you were “single” is not fraud because the question was not relevant to the application.

Questions from David:
I have a question — my husband came to the US as an F-1 student. He’s been in school the whole time and we got married just over two weeks ago. We have not yet submitted the paperwork for his green card. Does he have to continue in school or is our marriage enough for him to stay until his status changes?

Answer from Blandon Law:
Marriage by itself does not give any lawful status. If he wants to be here legally, he either needs to continue his studies on F-1 status or obtain the green card.

While the green card case is pending, Immigration — as a matter of policy, but not law — allows foreigners to stay. If the green card case is denied and he has no status, however, he will be put in deportation proceedings.

Follow up question from David:
How likely would it be for his green card to be denied? Is this something that happens other than in rare cases?

Answer from Blandon Law:
Green cards based on marriage are denied when the couple doesn’t present enough proof of the relationship or when their answers are inconsistent to basic questions (what is the name of your partner’s best friend?)

Question from New York, NY:
Can my same-sex partner get a green card through marriage if the A5 religious asylum case was based on an earlier opposite sex relationship? My same sex partner is getting either a5 or a10 status this week on his religious asylum from China case. The narrative of his case centered around the opposite sex relationship he had with a woman before me. We would have a clear bona-fide marriage (open to family, blended finances, live together, etc). Our fear is that the court will question the asylum case narrative (Catholic persecution in China) if we apply for same sex marriage green card adjustment. All the narratives are accurate but seemingly questionable if the court disbelieves a devout Catholic would ever enter a same sex relationship.

Answer from Blandon Law:
The court will ALWAYS question the facts of the case. It is the attorney’s job to present evidence that makes the judge believes that a same-sex relationship is possible despite a previous, valid opposite-sex relationship. There is plenty of evidence about this on the internet. Find someone who cares about asylum and same-sex issues. BTW, see my Asylee’s Daughter blog on the subject.

Question from Lafayette, IN:
Can I bring my partner into the US on a Fiancée Visa with intent to marry in the US under the new law? Would the process of citizenship (green card) through marriage for same-sex partners be the same as it is for opposite-sex couples? I know that it is possible for all couples already married, but would it be possible to start the process of getting married with a foreign same-sex partner under the principle set in place by the Supreme Court decision using a Fiancée Visa? Also, would we be able to travel to any state that recognizes same-sex marriages and then be recognized federally? This is without regard to my state’s recognition of the marriage, and strictly a federal concern. My partner has children as well.

Answer from Blandon Law:
Fiancée visas in general are difficult without strong evidence of the relationship. If there is strong evidence of the relationship, then the process SHOULD be the same as for opposite-sex relationships. Time will tell how unreasonable consular officers become when requesting proof of the relationship

Once the fiancée visa is granted, your partner can come to the U.S. and travel to any state of the union.

Question from Brooklyn, NY:
Can I upgrade my same-sex civil-partner’s B2 Visa to an L2? I recently relocated to NYC from London on an L1 visa. My same-sex civil-partner came with me on a B2 visa as the Fed (at the time) did not recognize him as my legal spouse. As the Supreme Court dismissed DOMA in June, I’m keen to find out if it’s possible to now get my partner’s visa status changed to L2 as I believe that now DOMA is redundant, the Fed would recognize him as my spouse. This is key to us staying in the country (financially) and I’d be keen to find out what can be done. My company was not sure whether they could apply for my green card due to the fact it would remove my partner’s B2 dependency status but now the law is changed I’m wondering if that’s also a route that can be explored.

Answer from Blandon Law:
If your marriage is recognized in the place where it was performed, now the Citizenship and Immigration Services will recognize it. I do believe it would be reasonable to change his status to L2 because that gives him the ability to work legally in the country. After that — relatively simple — case is approved, then yes, you should apply for a green card for him.

Questions from New York, NY:
I know a gay couple living in New York where one is US citizen and the other, his boyfriend, is undocumented, but came on tourist visa 13 years ago. Can they can get married in New York? If they can, how it will be the process with USCIS in order to receive a green card? Thank you.

Answer from Blandon Law:
First, couples can marry regardless of their immigration status. The second part is getting the green card. If a foreigner is in the U.S. without authorization, but entered legally, this is known as overstaying.

A person who overstays can obtain a green card through marriage to a US citizen. First the USC files a petition and then the foreigner applies for residency. The first part will be approved if the relationship is valid; the second, if the foreigner does not have problems that make him inadmissible (serious crimes, contagious diseases, etc.) There is usually an interview in front of an officer of the U.S. Citizenship and Immigration Services. Then, the green card arrives in the mail.

Question from Richardson, TX:
Can I sponsor my same sex partner while living in TX, but we were married last year in NY?I am a U.S. citizen, she is here on OPT student visa which runs out in Oct of this year. We currently live in Texas and would like to get to stay here.

Answer from Blandon Law:
Immigration law is federal, so what matters is that the marriage is valid where it occurred. Short answer: you can do this in Texas. Of course, that assumes she is otherwise eligible to get a green card based on marriage.