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Authored by Boyce Hinman, founder and director of the California Communities United Institute, and member of Marriage Equality USA. Hinman has been writing and posting a series, "Monday Morning Marriage Memo," as part of his Anatomy for Justice blog. This article was first published there, and is republished here with the author’s permission. Hinman resides in and serves California, therefore the posts sometimes have a California slant.
NOTE: Marriage Equality USA is not a legal firm or a tax/accounting firm. No action should be taken based solely on the content of our news blog or website.
For a long time, when a US citizen married a foreign national of the opposite sex (such as a citizen of England), the foreign national could emigrate to this nation on the basis of that marriage. However, until Section 3 of the Defense of Marriage Act was struck down by the US Supreme Court, the same was not true when a US citizen married a foreign national of the same sex.
Now same sex married international couples have the same immigration rights as do heterosexual couples. A foreign national, married to a US citizen of the same sex, now has the right to emigrate to this country.
I am not an attorney or a qualified tax expert. No action should be taken based solely on the content of these memos. However, I hope the memos will help you ask the right questions of people who are qualified in these issues.
There are two processes by which the foreign national can gain legal residency in this country.
1. If the foreign national is already in this country legally – In this case, the U.S. citizen may file an immigration petition (I-130) and the alien spouse may file an application to adjust his or her status to permanent resident (I-485) at the same time.
The I-130 petition must be filed with the United States Citizenship and Immigration Service (USCIS). The USCIS is part of the US Department of Homeland Security.
2. If the foreign national is in another country – In this case, the U.S. citizen needs to file an immigration petition (I-130) and request that the USCIS notify a U.S. Consulate in the country where his or her spouse lives. Once the immigration petition is approved, the National Visa Center of the U.S. State Department sends a “Packet 3″ to the U.S. citizen. After the necessary forms are completed, the alien spouse goes to the U.S. Consulate abroad to apply for an immigrant visa. On the day that the alien spouse enters the United States on an immigrant visa, he or she becomes a U.S. permanent resident.
People entering this process need to be patient. Recent reports indicate that it takes an average of 13 months for approval of an I-130 request where the foreign national is legally in the US. (Option 1. above) Option 2. Above will probably take longer.
However, when the alien spouse is living abroad, that spouse can apply for a K-3 visa. This visa allows the alien spouse to live in this country while the alien’s application for permanent residency in this country is being processed. People with a K – 3 visa are also allowed to work in this country while awaiting approval of permanent residency.