Same sex marriage and immigration

J

JohnHyrcanus

New Member
I am a US citizen living abroad in a country that does not have legal same sex marriage. I have been living abroad for many years, so I am not a US resident and I do not have a permanent address in the US. I have a same sex partner that is not a US citizen (he has a B1/B2 visa) and we want to live in the US. What type of visa does he need?

He can't enter the US on a tourist visa and then marry me and apply for a Green Card - that would be visa fraud. I can't sponsor a K-1 fiancee visa because I am not residing in the US. If he enters the US on a tourist visa and marries me, and then we leave the US, I still won't be able to ask for a spouse immigrant visa because I'm not residing in the US. So how can we move to the US together?
 
First, you have to realize that the likelihood of you moving to the US exactly together is highly unlikely. You will need to show (1) intent to re-establish domicile in the US before he can get a visa and (2) enough US-based income to sponsor him. While the first might be shown through plans to move, and the second helped by finding a joint sponsor, in practice the best way to accomplish these twin goals will be for you to move back at least a few months before your spouse gets his visa interview. A petition usually takes around a year to wind its way through the system before there is an interview date so you will have plenty of time to plan. A few months apart to achieve the long term goal is eminently worthwhile.

Before you can reach that stage, you need to be legally married to be able to file a spousal petition (via form I130) for him. If he has a B visa, you can do this in the US (be sure to have evidence on entry he will leave again to await visa processing so that CBP is more inclined to allow him in, if they think he is planning to just stay on they will refuse him entry), or you can marry in a third country. The place of marriage doesn’t matter as long as the marriage is legal where it happens.
 
Don't I need to live in the US before I even file the spousal petition?

If we get married in the US with his B visa, and I file a spousal petition (I130), can he then leave the US, apply abroad for the immigration visa, and reenter the US with his B visa while he is waiting for his immigration visa interview?
 
I understand that the nonimmigrant visa for spouse (K-3) can allow him to stay in the US while his immigration visa is being processed. But it must be filed in the country where the marriage took place. If we get married in the US with his B visa, can he file for the K-3 visa in the US or would that violate the conditions of the B visa?
 
JohnHyrcanus said:
Don't I need to live in the US before I even file the spousal petition?

If we get married in the US with his B visa, and I file a spousal petition (I130), can he then leave the US, apply abroad for the immigration visa, and reenter the US with his B visa while he is waiting for his immigration visa interview?
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No, you can file while living overseas. You only need to show intent to restablish domicile (or that you have done so) at interview.
The spousal petition is basically the visa application. (He will need to fill in a DS260 form and have an interview to complete the process, but “applying for the visa“ is not an extra step done separately from that process.)
He can enter on a B to visit; with a pending petition he will need to bring strong evidence on each visit that he will return home again to await visa processing. Some people are denied entry under such circumstances, others are allowed in - it is very much up to what the individual can show.

K3 is obsolete. If you file that it will get transferred into a spousal petition anyway. So it isn't a solution to your issue.
 
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