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The Immigration Service’s decision to accept gay marriage immigration in States where such marriages have been legally performed has resulted in a torrent of alien relative applications. By the full faith and credit clause of the Constitution, all States in the U.S. must recognize such marriages even for their residents who went to States to marry where it is legal though they were not living in those States where they married.

What about immigrant fiancés who live abroad and who intend to marry American citizens? We have a client a U.S. citizen as an example who wishes to marry his partner who is Dominican and lives in the Dominican Republic. The Dominican Republic does not accept gay marriage rights. The solution for our client is a fiancé visa so he can bring his partner here and marry in a State where it is legal. Gay marriage immigration rights must be respected by the Immigration Service and the State Department and U.S. Consulate’s abroad who must treat U.S. citizen’s engagements for same sex partners on an equal basis with heterosexual engagements. The Immigration Service will not accept a fiancé visa application if the couple has not physically met. Meeting on the internet is not enough. Proof that the American citizen has visited his/her same sex partner may be proven by the U.S. citizen’s passport which would show the stamp of entry to the country where the immigrant same sex partner lives. Other proofs must show the good faith of the application, as for example, proofs of time spent together in the immigrant partner’s country, visits with his/her family, photos together at events or parties.

When the same sex partner arrives in the U.S. after the Consulate abroad has interviewed the same sex partner, and given a K-1 visa, the immigrant must marry within 3 months. Thereafter for gay marriage USA, the U.S. citizen may file an alien relative petition for the same sex partner. The immigrant spouse will receive a provisional residence status for 2 years and after 2 years the joint petition of the couple may make the provisional residence permanent. As with heterosexual couples, if the same sex couple has separated, the immigrant spouse will need to seek a divorce and would be allowed to file a self-petition to make the provisional residence permanent. The immigrant spouse would have to submit with the self-petition proof that the couple lived together in good faith and that the marriage was legitimate.

If the immigrant spouse had previously lived in the U.S. and entered illegally or overstayed his/her authorization or had been deported, he/she would need to reenter with a Pardon or Waiver. The U.S. citizen spouse may apply for this Pardon but would have to demonstrate that he/she would suffer extremely unusual hardship if the immigrant same sex spouse were not admitted to the U.S. Extremely unusual hardship may be proved by the U.S. citizen’s proof of psychological, or psychiatric or psychoanalytic visits and/or to a physician indicating physical stress resulting from the separation. These professional mental health specialists would need to evaluate the details of the claim of extremely unusual hardship. Gay marriage immigration visas have become a reality.

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