Google+ Hangout on Visa Guidelines for Same-Sex Spouses
We have three panelists here today. I’m going to let each of them introduce themselves and talk about the work they’re doing. First up is Don Heflin, who is managing director of the Visa Office at the State Department Bureau of Consular Affairs.
MR. HEFLIN: Thanks, Chris. Last Friday was a momentous day in visa processing. We sent out our worldwide instructions to every embassy and consulate in the field a little over five weeks after the Windsor decision, making it clear that we would now treat same-sex couples the exact same as opposite-sex couples for visa processing. Secretary Kerry made the announcement in London, and David Stewart and our colleagues there were able to issue the very first visas based upon a same-sex relationship.
Now, we expect there will be some transitional issues. Broadly speaking, there are three categories of visas. There are immigrant visas, where we’ll need petitions to be approved by USCIS and make their way through the pipeline to us, which in most cases could take at least a few weeks, maybe a few months. There are some visas that we could be issuing right away. I’m thinking particularly here of L-2 and H-2 visas, where the applicant merely needs to show the principal visa status and their relationship. And then the third category are visas that fall kind of in between those two, F-2s and J-2s, where the applicant needs to show a form in which they were listed as the spouse. And my understanding is that within the last few days the authorities in Washington who control those forms have gone out to universities and other sponsoring organizations and told them that it’s okay to start adding same-sex spouses. So we expect to see a pretty good amount of those cases, particularly with Labor Day and the start of school beginning to loom for some families.
So we’re very happy. We’ll get through these transitional issues and then everybody will be on a level playing field, which I think was the goal in the first place.
MR. JOHNSON: That’s great. And also with us is David Stewart, who is joining us from London. He’s a minister counselor for Consular Affairs at the U.S. Embassy in London.
MR. STEWART: Hi, Chris. If I can introduce myself, I’m responsible for the consular work here in London. Just briefly, we have the largest group of American citizens outside North America, about 400,000 here in the United Kingdom, and so we have the largest passport-issuing operation in the world outside of the domestic operations in the U.S. We have – we’re a regional embassy in that our federal benefits unit and our – covers a good part of Africa and parts of Europe. Our fraud prevention team crosses borders working with colleagues.
But the main point of why I’m participating today is, as Don mentioned, our visa unit hosted the Secretary of State last Friday. We were quite honored that after meeting our team he made this announcement in our waiting room, where every day we welcome our visa applicants. And our immigrant visa processing team and our nonimmigrant visa processing team are quite excited to be on the forefront of offering equality through the visa process.
MR. JOHNSON: And lastly we have Victoria Neilson, who is legal director for the LGBT group Immigration Equality.
MS. NEILSON: Great. Hi, thanks for having me here. This is a very exciting time for Immigration Equality. We are a national organization in the United States that advocates for full equality under U.S. immigration law for LGBT people. Obviously, the Windsor decision has meant a sea change in the work that we do. It’s been really great to finally be able to say yes to committed families instead of no, which we’ve been saying for many years. We are delighted that the State Department put out its guidance last week, meaning that people can start processing the applications that Don Heflin talked about abroad.
I think there will still be some bumps in the road, and one of the issues that we’ve raised with the Department of State that we continue to have some concern about is for couples who are filing marriage-based petitions in countries where it’s illegal to be gay. We have some concerns that people won’t feel safe in those situations filing a marriage-based petition or a fiancee visa. And we’re going to continue at Immigration Equality and at the American Immigration Lawyers Association, where I’m also a member of the LGBT Working Group, to work on those issues to make sure that, as Don Heflin said, that we basically have a level playing field going forward.
And if I – sorry, before we get into the questions, I just would also just say if there are people listening and you have legal questions, our website is ImmigrationEquality.org and you can submit questions through there. So if you have kind of specific issues that don’t get answered here, we do answer those questions and provide referrals to lawyers if that’s necessary. Sorry.
MR. JOHNSON: Great. So we’ve got a lot of questions here from people who are interested in this new policy. The first one is for Don and it is from Nikola C. in the United Kingdom.
The question is: Will the Department of State and U.S. Citizenship and Immigration Services take into consideration how long same-sex couples have had to wait for this day to come, and if there’s any plan to see that recognized perhaps with an expedited treatment in the processing of applications?
MR. HEFLIN: It’s a good question. I mean, we basically want to give everybody a level playing field now. I think, as a practical matter, there’s going to be some expediting during the next few weeks or month because we always do some expediting when the beginning of the school year looms. I mean, it’s not only for people who are coming here as students but for parents who want to get their kids over here. As they get settled into their new work situations, the kids can start the school year with their neighbors. And in the nonimmigrant visa realm, we’ll be very open to requests for expediting for that, just like we would for opposite-sex couples.
In the immigrant visa realm, immigrant visas, because of all the paperwork involved and because of the two-step process, the petition with USCIS and then coming to us for visa processing, kind of by their very nature don’t move that fast. I applaud my colleagues at USCIS. Apparently, they’ve been keeping a running spreadsheet of the cases that have been turned down since 2011 only because of DOMA, so it may be that those cases will be able to move fairly quickly out to the embassies and consulates and be issued.
MR. JOHNSON: Great. Let’s open it up. This next question can be for any one of our panelists. It’s for Matthew E. in Switzerland. He asks: How will foreign domestic partnerships be recognized, and will visas to same-sex foreign spouses be predicated on U.S. residency?
Don, you may be the best person to address that as well.
MR. HEFLIN: Let me start off with that and then I think Victoria might want to chime in also. U.S. residency – we specifically said in our instructions that we don’t take into account where in the U.S. you’ll be moving once you receive your visa. If you were married in a place where same-sex marriage was legal the day you were married and you otherwise qualify for the visa, we’re not going to get into looking at where you’ll reside in the U.S.
Now, on the civil union domestic partnership question, I’ll be straight up. This is kind of a thorny question. What the Windsor decision did was remove a lot of the restrictions on visas for same-sex marriages. It was silent about civil unions and domestic partnerships. And it’s a question that a lot of different government agencies are looking at for various reasons. I expect it will take probably months to resolve exactly how civil unions are going to be viewed in terms of immigration law and other aspects of federal law.
MS. NEILSON: Yeah, thanks. I guess I would just add to that the advice that we have been giving to most couples is if you can get – if you’re in a civil union or civil partnership and you can get married, that your rights will be much more certain at that point and the processing of an application would be more straightforward. I mean, we’ve heard from some people who have children where there is going to be an issue about whether or not the civil union created a stepparent relationship. I just heard from someone today where they entered into a civil union when the children were below the age of 18 and the child is now above the age of 18.
So I do – I mean, I think that there – I agree that there will still be probably months of sort of back and forth among the various agencies to figure out exactly what is going to happen with civil unions. I mean, there is a provision in the Department of State regulations, the Foreign Affairs Manual, which does recognize common-law marriages in some circumstances if they are basically the equivalent under the law of the place where they’re celebrated to marriages. So, I mean, I understand there’s a legal argument to be made in favor of recognizing civil unions or civil partnerships. That being said, the Department of State guidance that came out last week said that at this point they’re only recognizing marriages and not civil unions. So it’s a bit of a question that I think is still open-ended, but as I said at the beginning, the safest answer is if you can marry without hurting rights that you need to protect, that’s the safer and faster route to go at this point.
MR. JOHNSON: Well, I’m going to invoke my moderator’s privilege and ask one of my questions on my own. I’m going to direct this to David, actually. Can you talk to me a little bit about – you’re in London. How has – how have people in London taken advantage of this new policy, been getting much interest and applications from same-sex couples seeking visas? Is there any way you can quantify that, how much we’ve seen since the announcement last week?
MR. STEWART: That’s a great question, Chris. First of all, UK is, as you know, a society that’s very supportive in general in terms of LGBT issues, but they just passed their law legalizing same-sex marriage to really go into effect next summer. So we don’t anticipate a real surge of locally based cases until it’s easier to – and again, as Victoria mentioned, right now we’re talking about what’s considered a marriage in the place where we are. So it’s not until next summer that we will be having locally based marriages enabling the immigration.
The case that we had as our first case, they were legally married in the United States. There are people, I’m guessing, here who have marriages from other jurisdictions and that we will be happy to handle. We’re noticing just since DOMA – and this, again, Don, is just sort of anecdotal, but about a 5 percent uptick in our fiancee cases. Now, we’re not identifying them. There’s no reason we would be looking at whether it’s same-sex or opposite-sex. We’re just noticing – until the actual applicant comes in, then we would see who’s in front of us, but we’re noticing that that’s picking up somewhat.
And the fact that it’s a two-step process, as Don mentioned, the cases that are approved by USCIS in the States we wouldn’t see for months. But we in London do have a USCIS office here. They are accepting petitions for people who are presently residing in the United Kingdom, and that was how we were able to act so quickly because they have been approving these, and so there are people who are resident here, and I would suspect that those cases will be able to – we can be able to process those relatively quickly because the process is just quicker. As you know, the delay is often between the approval in the United States and it goes to the National Visa Center and so forth.
So there’s excitement here, but on the ground, we haven’t seen a whole lot of visa applications yet, but we expect that to be picking up shortly.
MR. JOHNSON: Great. The next question comes via Facebook from Richard H. in Mexico.
He says: I am a U.S. citizen partnered to a Mexican citizen since 2005. In 2007, I relocated to Mexico in order to legally be able to live with – live together. We are planning to get married next September in New York City. With our marriage certificate and proof of our relationship, can we apply for my partner’s/husband’s Green Card from a consular office in Mexico?
MR. HEFLIN: Well, first off, congratulations and yes, (inaudible).
MS. NEILSON: I think we’re having some problems hearing you, Don. Maybe I can jump in for a moment till you get your --
MR. HEFLIN: (Inaudible) and since these folks are resident in Mexico, they interview them (inaudible).
MR. JOHNSON: Victoria, why don’t you go ahead and jump in, and if Don comes back in, we can go back to him.
MS. NEILSON: Okay.
MR. HEFLIN: I’m back.
MS. NEILSON: Okay. All right. Go ahead. Maybe you should repeat what you just said because you sort of faded out.
MR. HEFLIN: Yeah, please, (inaudible).
MR. JOHNSON: You kind of faded out there, Don. Do you want me to repose the question? Somebody wants to apply --
MR. HEFLIN: Yes.
MR. JOHNSON: -- from the consular office in Mexico, so will they be able to do that from – apply for a visa in that location – a Green Card for – in that –
MR. HEFLIN: Yes, yeah. We’ll be processing cases at the Consulate General in Ciudad Juarez for the vast majority of immigrant visas from Mexico. In this case, the happy couple’s going to get married in New York, so they’ll have a New York marriage certificate. But my understanding is that same-sex marriage is legal in Mexico City and some other jurisdictions in Mexico now, so we may also see couples who are living there now who get married in Mexico City (inaudible).
MS. NEILSON: Well, if I can just jump in, I think the short answer is yes. Yes, marriage is valid in New York and you can go ahead and file the I-130 immigrant visa petition from Mexico and it will lead to an interview in the Mexican consulate.
MR. JOHNSON: Great. Looks like we’re still having some technical difficulties where Don’s at, so I’ll just keep going here with the other two panelists.
This is from Oliver S. in the United States: If I’m a U.S. citizen married to a noncitizen of the same sex who is undocumented and living in the U.S., is there any way to adjust (inaudible)?
MS. NEILSON: (Inaudible.) Yes. There are a couple of exceptions. If you entered legally with the visa and overstayed and you are married to a U.S. citizen, then the fact that you’re here unlawfully is forgiven and you can file that application from within the U.S. The exception to that rule, however, is if you entered the United States without inspection, without getting a visa, and without seeing an officer at the border, then even if you’re married to a U.S. citizen, you can’t file from within the United States. There’s one more exception to that, if you have an application pending that was approvable when filed back in 2001, but there are fewer and fewer people that fall under that exception.
So basically, if the partner entered without inspection, he will have to return to his country and do consular processing. And if he’s been here, as it sounds like, for more than a year without lawful status, he would get hit with what’s called a 10-year bar when he goes back to his country to consular process.
It may be possible to file for a waiver of that unlawful presence, and there’s now a procedure with USCIS where a person can file that waiver, the I-601A from within the United States and get the waiver approved before going back to the home country to consular process. As you can hear, this is a complicated process, and I would say that anybody who’s contemplating filing that unlawful presence waiver should certainly speak with an immigration attorney before they file anything, because anyone’s who’s in the United States without lawful status is potentially at risk for being put into removal proceedings in immigration court.
MR. JOHNSON: Okay. Well, I see Don is back with us. I’m just going to go on to our next question. It’s from Larry T. in Costa Rica: I’m a U.S. citizen and my partner is a Costa Rica citizen and has never had a visa to the United States. We want to apply for fiance visas soon so we can marry in California, my state of residence. Once married, must you remain in the United States for a certain period of time? Is the requirement for being in the United States for a specified period of time while the Green Card application is being processed? That --
MR. HEFLIN: I going to defer to David in a minute. He mentioned fiance visas earlier, and I know that they do a lot of them in London for opposite-sex couples already. We think the fiance visa is probably going to be the solution for a lot of couples.
MR. STEWART: Yeah, I agree. But again, just to remind the inquirer that it’s a two-step process, so we – State Department consular officers need the approved petition that would put them in contact first with USCIS. So I understand you can go on the USCIS website, you can download the petition and so forth. That’s the first step, and then it would come to us.
But certainly, I think, Don, especially people that are in jurisdictions that do not yet have the local jurisdiction providing for same-sex marriage, that would be the way to go. Otherwise, you would – they would need to go elsewhere and get married. So that – I’m anticipating, at least for the next year in London, that will probably be – the vast majority of our cases would be the fiance.
MS. NEILSON: And if I could just jump in on the second half of his question, Chris? He was asking once he gets the fiance visa whether he needs to remain in the United States. Is that --
MR. JOHNSON: That’s what he asked, is there a requirement for being in the United States for a specified period of time while the Green Card application is being processed.
MS. NEILSON: Right. So basically, I guess two things. One, a fiance visa is sort of an unusual visa because it’s actually a temporary visa. It allows a person to come to the United States for 90 days on temporary status, and that person must marry the fiance during that period of time. And if they don’t, then they have to leave the United States. So assuming he comes to the United States and marries the American partner, at that point, the American partner can sponsor him for a Green Card.
If they want to continue to live in Costa Rica, I mean, I suppose they could come to the United States, marry within that 90-day window, and then return to Costa Rica, which is what it sounds like maybe he’s asking. Because if they come to the United States, marry, and then file the Green Card application, then basically – when you file an application for a Green Card, you’re basically seeking to live in the United States permanently, but you have to actually live here. So if they file the application for lawful permanent residence and it’s approved, then the Costa Rican partner would have to reside in the United States. And people who are lawful permanent residents who leave the United States for more than six months, unless they get permission ahead of time, are at risk of losing – of abandoning their lawful permanent resident status.
So it sounds like there’s maybe some more information that would be necessary to really kind of unfold that question, I think.
MR. JOHNSON: Okay. We also have some questions from our Twitter followers. This one comes from – I’m going to pronounce this as Supersuuuuuu (ph). There are six Us there, so – the question is very – it’s pretty broad: In what countries will this be legal?
MR. HEFLIN: We’re going to process visas all over the world based on marriage certificates issued in the countries or in the U.S. states where it’s legal, and I think Victoria might have a better idea of exactly what – or how many countries we’re looking at now.
MS. NEILSON: Sure. If you look on the Immigration Equality website under the issue area Couples and Families, there’s one FAQ entitled “Where can we marry?” and that lists the various countries and states that currently have marriage equality. I believe there are 15 or 16 countries that have full marriage equality. Obviously, much of Western Europe, South Africa, parts of Brazil, parts of Mexico, Argentina, but you can see sort of the full list on there. And within the United States, there are 13 states plus the District of Columbia that currently have marriage equality.
But you should certainly – if you’re traveling aboard to marry, you should – you can look at the information on our website and then double-check with the clerk’s office of the place that you intend to go to marry, because some countries only allow citizens of the country or residents of the country to marry there.
And one other thing just to be aware of, which some people – obviously, at that moment when you’re happy and thinking about marriage, you don’t necessarily think about divorce, but you should also look at maybe the divorce laws at the jurisdiction where you’re planning to marry because at least in the United States, one of the problems that we see with marriage equality in some states but not others is that if you live in a state that doesn’t have marriage equality, you may not be able to divorce there, and there are often resident requirements to divorce in the state where you marry, and so it can – people can end up sort of in this situation where they entered into a bad marriage and they can’t get out of it.
MR. JOHNSON: And the last question from Twitter comes from Javier Jugarin (ph) and he asks: I’m a Mexican citizen partnered since 2005 to a U.S. citizen. Can we apply for my Green Card at the consulate in Mexico?
I think this has been already asked before, but it’s on the list, so I’m asking it again.
MR. HEFLIN: I’m going to defer to David here a little, because the real question here is not whether you can get it issued in Mexico, it’s where you should file your petition. I think David’s got some real world experience with that.
MR. STEWART: Well, there are – I served in Mexico a few years ago. I think the – and again, we have to be careful in speaking for our colleagues at USCIS, but I do think countries such as the United Kingdom or Mexico, where USCIS has a presence, it does give an opportunity to people who are residing there, and I don’t think – they are not going to I don’t think be encouraging people to travel to take benefit of their services. So if the marriage is – if a marriage is occurring in the United States, the person would – probably would go there with a fiance visa and marry there and then would be able to adjust status with USCIS.
But for people who live in a place such as Mexico – and I’m presuming that CIS is actually accepting and approving petitions there, the way they are here in the UK – then for residents, there is a real opportunity because you can – it’s a two-step process, but both of those steps can be done overseas, and there’s generally – it’s going to be a quicker process that way. So it would seem to me that if Mexico allows same-sex marriage, I would go on the USCIS website right now and get instructions for what their offices – what services they provide in Mexico, download the form, go there and pay a fee, file a petition, and then I would guess the U.S. – the consulate in Ciudad Juarez would then be the place you go for the processing. So I think that for people who live in a country where USCIS is present, there is an opportunity for probably a quicker process than going to the U.S.
MR. JOHNSON: I think that’s all we have for the questions that were submitted in advance. I’m just going to send it to Don for some closing remarks.
MR. HEFLIN: Well, Chris, thank you for hosting us today and thank you, David and Victoria, for your comments. We are striving to, as quickly as possible, ensure that there’s a level playing field for same-sex couples and families. That said, the visa process, particularly the immigrant visa process, is sometimes very complicated. As Victoria noted, in certain cases, you may well need an immigration attorney. So a level playing field isn’t always going to lead to easy or quick answers for families, but it’s going to lead to the same answers that opposite-sex families have enjoyed for decades, and that’s our goal.
MR. JOHNSON: Good, good. Thank you all for joining us and that’s all the questions that we have from everyone, and that’s a wrap. Great.
MS. NEILSON: Thank you.
MR. STEWART: Thank you.