Speaking at the U.S. Embassy in London on Aug. 2, 2013, Secretary of State John Kerry announced that, “effective immediately, when same-sex spouses apply for a visa, the Department of State will consider that application in the same manner that it will consider the application of opposite-sex spouses.”
“Here is exactly what this rule means: If you are the spouse of a U.S. citizen, your visa application will be treated equally,” Kerry explained. “If you are the spouse of a noncitizen, your visa application will be treated equally. And if you are in a country that doesn’t recognize your same-sex marriage, then your visa application will be treated equally at every single one of our 222 visa-processing centers around the world.”
He also noted that as of 2014, same-sex marriage will be lawful in England and Wales. “Today the State Department—which has always been at the forefront of equality in the federal government, I’m proud to say—is tearing down an unjust and an unfair barrier that, for too long, stood in the way of same-sex families being able to travel as a family to the United States.”
Speaking to SHRM Online, Justin Storch, manager of agency liaison at the American Council on International Personnel, an affiliate of the Society for Human Resource Management, commented, “We’ve reached a watershed moment: Our immigration system no longer cares whatsoever whether immigrants are marrying people of the same sex or of the opposite sex.”
Noting that the Supreme Court has found Section 3 of the Defense of Marriage Act unconstitutional, the State Department explained in the frequently asked questions (FAQs) for Post-Defense of Marriage Act that “The same-sex spouse of a visa applicant coming to the U.S. for any purpose—including work, study, international exchange or as a legal immigrant—will be eligible for a derivative visa. Likewise, stepchildren acquired through same-sex marriages can also qualify as beneficiaries or for derivative status.”
A U.S. citizen who is engaged to a foreign national of the same sex and who cannot marry in the fiance(e)’s country may apply for a fiance(e) (K) visa and file a Form I-129F, Petition for Alien Fiancé(e), according to the FAQs. “As long as all other immigration requirements are met, a same-sex engagement may allow your fiance to enter the United States for the purpose of marriage.”
And same-sex spouses and their children are now equally eligible for nonimmigrant derivative visas. Nonimmigrant visas are “temporary visas, such as H-1B, L-1, etc.,” Storch said. “The derivative visas are what the spouse gets, such as H-4, L-2, etc.”
“Same-sex spouses and stepchildren (F-2 and M-2) of student (F-1 and M-1) visa applicants will need to obtain an I-20A prior to application,” the FAQs stated. “Spouses (J-2) of exchange visitors (J-1) visa holders will need an approved DS-2019. Finally, same-sex spouses of victims of criminal activity (U-2s) and human trafficking victims (T-2s) will require completed Supplement A to Form I-918 or I-914, respectively, before an officer approves any derivative cases. This additional documentation is also required for opposite-gender spouses.”
Children of foreign-national spouses may be considered stepchildren of the U.S. citizens and, therefore, benefit from a petition filed on their behalf in the IR2 category.
“I get to sit up on the seventh floor of the State Department, looking out straight at the Lincoln Memorial,” Kerry remarked. “This year marks the 50th anniversary of the famous March on Washington and of Martin Luther King’s unbelievably eloquent and historic plea for equality. So that is where the dream was declared. The march goes on. This is several more steps in that march.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.