SameSexMarriage

[hmh33 117]

Leaving the topic of same-sex marriage aside for a moment...

The OP mentioned that it's important for his fiance to be able to travel freely during the immigration process. That points in the direction of CR-1 rather than K-1, as with K-1 the immigrant would be "land-locked" in the US for the first three months or so, until his temporary travel permit ("Advance Parole") was approved. (Emergency Advance Parole is potentially available for dire family emergencies, but it's not a good idea to plan on being able to obtain that).

Therefore, the obvious path would be for the two of them to first get married (which can happen either outside the US or inside the US e.g. on a Visa Waiver Program visit, as long as it is in a jurisdiction where same-sex marriages are legal). The immigrant must then leave the US, and file for a CR-1 immigrant visa, which typically takes around 9 months to be processed. During that time he can continue to make occasional visits to his husband in the US. When the process is complete he'll be issued a CR-1 immigrant visa. As soon as he enters the US with that visa, he'll become a Legal Permanent Resident, and his passport will be stamped which will act as a temporary green card until the plastic card comes in the mail. He'll immediately be free to work and travel without restriction (except that he must from then on make the US his primary place of residence.)

I hope that helps clear up the situation a little. As previously mentioned, K-3 is obsolete - it was created as a stopgap measure when the CR-1 process was taking years rather than months. It doesn't serve any purpose for anyone now, and if you apply for one it will just be converted to a CR-1 before it is approved, but will cost more money.

[hklad 9]

Yes, being free to marry means you are both single and able to marry someone legally. For a K-1, it has to be legal in the state where the petitioner resides and they intend to marry. People have been talking about 1st cousin marriages for example. First cousins can marry in some states and in others they cannot. If someone files a K-1 for a 1st cousin, it does not have to be legal in the foreign fiance(e)'s country because that is not where the marriage will take place. It has to be legal in the USC petitioner's state where they intend to wed.

Do you have anything official that says that for a K1, it has to be legal in the state where the petitioner resides?

Admittedly, the Supreme Court only handed down the DOMA decision earlier this week. But one applicable guidance is the treatment of marriages between a trangender person and a man. For that the USCIS has the following to say:

(J) Transgender issues and marriage. [Revised 8/10/12; PM-602-0061.1, AD12-02]

Benefits based upon marriage may be approved on the basis of a marriage between a transgender individual and an individual of the other gender if the Petitioner/Applicant establishes 1) the transgender individual has legally changed his or her gender and subsequently¹ married an individual of the other gender, 2) the marriage is recognized as a heterosexual marriage under the law where the marriage took place (Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005)), and 3) the law where the marriage took place does not bar a marriage between a transgender individual and an individual of the other gender.

While a timely registered heterosexual marriage certificate from the appropriate civil authority is prima facie evidence of the validity of a marriage, when an officer determines, based on the record or through interview or other means, that a party to a petition has changed gender, the officer must ascertain that the marriage is a valid heterosexual marriage under the laws of the jurisdiction in which it was contracted.

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-3481/0-0-0-4484.html

[imagineyouandme 12]

From what I've been reading on the topic of same-sex marriage immigration, it seems that the only requirement in the US would be that the same-sex marriage take place in one of the 13 states (plus DC) where it is legal, since immigration honors the state of celebration instead of state of residence.

[Harpa Timsah 13,258]

Yes, I understand that. But when filing for a K1 visa, one of the requirements is free to marry in both countries. Logic tells me that if you're not free to marry in the beneficiary' country, then it'll be denied.

Not exactly. The K-1 is actually designed for people who can't marry in the beneficiary's country. The parties need to be unmarried, but many countries have rules about interfaith marriages or extreme bureaucracy to marry foreigners that makes it impossible for the couple to marry abroad.

[a+j 77]

Hi, I wanted to share this news story with you about a deportation process being stopped because of the DOMA ruling yesterday: http://tv.msnbc.com/2013/06/26/judge-stops-deportation-hearing-minutes-after-court-strikes-down-doma/

So the fact that the feds recognize SSM is having an immediate effect. I don't know how this impacts K-1 (fiancee') filings. The DOMA ruling appears not to have declared that SSM is universally constitutional in the U.S., just that those marriages performed in states where it is legal are now considered legal on a federal level (however states that don't want SSM are still allowed to vote that way).

That's nice, I was going to share the exact same story.

If it was me, I would play it safe. Since it's a whole new thing, I'd want to reside and get married in a US State that recognizes SSM, and then apply for a CR1 with the help of an immigration lawyer who's also into marriage equality support. That's just my opinion though, I'm sure the organization Grinchus suggested (or other similar ones) could be of much help to get started.

Italy is in the visa waiver program: it would be possible for your husband to visit you during the process provided he can prove strong ties to Italy (if asked for them upon entry into the US). Since he appears to have a stable job there, my guess is it shouldn't be too hard.

Best of luck to you.

[Penguin_ie 5,992]

This is another sweet story: http://www.washingtonpost.com/local/gay-couple-get-twin-gifts-supreme-court-rulingand-parenthood-in-one-week/2013/06/26/10d7caa0-de8a-11e2-963a-72d740e88c12_story.html?wprss=rss_story-courts_law-NW3

[KayDeeCee 4,893]

Do you have anything official that says that for a K1, it has to be legal in the state where the petitioner resides?

Why did you leave out part of the sentence when you quoted it? "it has to be legal in the state where the petitioner resides and they intend to marry." I also said, "It has to be legal in the USC petitioner's state where they intend to wed."

The CO would assume they would marry in the state that the petitioner resides and would most likely not approve the visa if it is not legal to marry in the state the petitioner resides in. However, they could provide documentation to prove they would be getting married in a state where it is legal. There was a case a few years back where the petitioner was wanting to wed his first cousin but resided in Texas where it is not permitted. The CO wanted documentation that is was okay for first cousins to marry where he lives. They decided to marry in a state where it was legal, and just needed to provide an explanation letter and documentation that they would wed elsewhere and that it was legal to do so in that location.

I suppose I worded it badly. It has to be legal in the state they plan on getting married, and they should provide documentation that they will wed where it is legal, if it is not legal in the state in which the petitioner resides.

[hklad 9]

Why did you leave out part of the sentence when you quoted it? "it has to be legal in the state where the petitioner resides and they intend to marry." I also said, "It has to be legal in the USC petitioner's state where they intend to wed."

The CO would assume they would marry in the state that the petitioner resides and would most likely not approve the visa if it is not legal to marry in the state the petitioner resides in. However, they could provide documentation to prove they would be getting married in a state where it is legal. There was a case a few years back where the petitioner was wanting to wed his first cousin but resided in Texas where it is not permitted. The CO wanted documentation that is was okay for first cousins to marry where he lives. They decided to marry in a state where it was legal, and just needed to provide an explanation letter and documentation that they would wed elsewhere and that it was legal to do so in that location.

I suppose I worded it badly. It has to be legal in the state they plan on getting married, and they should provide documentation that they will wed where it is legal, if it is not legal in the state in which the petitioner resides.

Hello Jay-Kay, I didn't mean to offend, and if I did, I apologize. I was just wondering because you said "where the petitioner resides and they intend to marry" which would mean both conditions must be satisfied. Perhaps you really meant to use the connector "or". Thank you for telling us about the First Cousin case in Texas. Together with the transgender case, I hope the same guideline would be applied to same-sex couples with the petitioner living in a non-marriage equality. Only time will tell now. I am sure in a few months, this should become clear.

I found from one organization's recommendation to "submit evidence with your fiancée petition that indicates you plan to marry in a marriage equality state"

[hklad 9]

Great news! Looks like the first Marriage based green card had beem approved for a same sex couple in Florida. http://www.domaproject.org/2013/06/press-release-gay-couple-in-florida-receives-approval-of-marriage-based-green-card-petition-just-two-days-after-historic-supreme-court-ruling-striking-down-defense-of-marriage-act.html

[KayDeeCee 4,893]

Hello Jay-Kay, I didn't mean to offend, and if I did, I apologize. I was just wondering because you said "where the petitioner resides and they intend to marry" which would mean both conditions must be satisfied. Perhaps you really meant to use the connector "or". Thank you for telling us about the First Cousin case in Texas. Together with the transgender case, I hope the same guideline would be applied to same-sex couples with the petitioner living in a non-marriage equality. Only time will tell now. I am sure in a few months, this should become clear.

I found from one organization's recommendation to "submit evidence with your fiancée petition that indicates you plan to marry in a marriage equality state"

I was not offended. There was nothing to be offended about. I knew what I meant in my head. I just worded it badly in text. It was good to get that all cleared up. If a petitioner lives in a state where SSM is not legal, then it is a must for their case to include documentation that proves they will be married in a state where it is legal.

[The Mean Lady 604]

Great news! Looks like the first Marriage based green card had beem approved for a same sex couple in Florida. http://www.domaproject.org/2013/06/press-release-gay-couple-in-florida-receives-approval-of-marriage-based-green-card-petition-just-two-days-after-historic-supreme-court-ruling-striking-down-defense-of-marriage-act.html

Careful, that is not an approved greencard, that is an approved petition, or I-130.

He's now off to the next part which will eventually lead to a visa and then green card if approved.

[hklad 9]

Careful, that is not an approved greencard, that is an approved petition, or I-130.

He's now off to the next part which will eventually lead to a visa and then green card if approved.

You are right! That was an I-130 petition. This is the news of the first GC granted to a lebian couple in Colorado.

http://www.advocate.com/society/marriage-equality/2013/07/04/history-made-first-same-sex-spouse-granted-green-card

[NikLR 13,227]

That's awesome news. I'm glad that living in a non-SSM state wasn't an issue at all! YAY! So happy they can be a happy family!