Same-Sex Marriage Sponsorship

1. What Is Same-Sex Marriage?

Same-sex marriage is a marriage between two individuals of the same biological sex.

2. How Can You Sponsor a Same-Sex Spouse?

To sponsor a same-sex spouse, you may choose one of the following options:

File a spousal petition under the CR1/IR1 category: This option is available only to couples who are legally married and whose marriage is recognized as valid under the law. To qualify, both parties must register their marriage in the United States or in a country/territory that legally recognizes same-sex marriage. Once legally married, you may file a spousal petition just like any other married couple under U.S. immigration law.

File a fiancé(e) petition (K-1 category): This category does not require prior marriage registration, but the following conditions must be met in order to sponsor a same-sex fiancé(e):

• The petitioner must be a U.S. citizen
• Both the petitioner and the beneficiary must be legally single
• The petitioner and beneficiary must have met in person within two years prior to filing the petition
• They must intend to marry within 90 days after the beneficiary enters the United States
• If including a stepchild, at the time of entry into the United States, the child must be under 21 years old and unmarried
• There must be evidence proving the relationship is genuine

3. Is Same-Sex Marriage Sponsorship Difficult to Obtain a Visa?

Same-sex marriage petitions are processed the same as opposite-sex spousal petitions. Cases that may face difficulties often involve situations where the petitioner or beneficiary was previously married and had children with someone of the opposite sex, later divorced, and then filed a same-sex petition, which may raise questions from the consular officer regarding the authenticity of their sexual orientation.

4. Is the Processing Time or Interview Preparation Different from Opposite-Sex Cases?

Regarding procedures and processing times, same-sex marriage petitions are no different from opposite-sex cases.

5. Required Documents for the Petitioner and the Beneficiary

For the Petitioner:

• Proof of U.S. citizenship (U.S. passport, birth certificate issued in the U.S., or Green Card if applicable)
• Birth certificate (if sponsoring a parent)
• Financial support documents, including most recent tax returns, Form W-2 or 1099, proof of employment. If the petitioner does not meet the income requirement, a joint sponsor is required (the joint sponsor must provide financial documents and sign the appropriate Affidavit of Support)
• Divorce decree(s) from any prior marriage (if applicable)
• Marriage certificate(s) from any prior marriage (if applicable)
• 2×2 inch passport-style photos

For the Beneficiary:

• Form I-94
• Visa and passport
• Birth certificate
• Current marriage certificate (if any)
• Divorce decree(s) from any prior marriage (if applicable)
• Marriage certificate(s) from any prior marriage (if applicable)
• Form I-20 (for international students)
• I-129F approval notice (for those entering the U.S. under a fiancé(e) visa)
• Previous employment authorization card (if any)
• Medical examination results for green card application
• 2×2 inch passport-style photos

Required Forms:

• Form I-130 (Petition for Alien Relative)
• Form I-130A (Supplemental Information for Spouse Beneficiary, if applying under a spousal category)
• Form I-485 (Application to Register Permanent Residence or Adjust Status)
• Form I-765 (Application for Employment Authorization)
• Form I-131 (Application for Travel Document)
• Form I-864 (Affidavit of Support)
• Form G-1455 (E-Notification of Application/Petition Acceptance)
• Form WR-703 (Biographic Information for Overseas Vietnamese)

6. Which Countries and Territories Recognize and Allow Same-Sex Marriage?

In addition to the United States, other countries and territories that recognize same-sex marriage include: the Netherlands, Belgium, Canada, Spain, South Africa, Norway, Sweden, Argentina, Portugal, Iceland, Denmark, Uruguay, Brazil, New Zealand, parts of the United Kingdom (England, Wales, Scotland, Northern Ireland), France, Luxembourg, Greenland, Colombia, Malta, Germany, Austria, Taiwan, Ecuador, Costa Rica, and others that legally recognize same-sex marriage.

7. How Should You Prepare for a Same-Sex Marriage Visa Interview at a U.S. Consulate?

Answer confidently, clearly, and consistently, and provide persuasive evidence to convince the consular officer of the authenticity of your relationship.

Supporting evidence may include:

• Boarding passes and entry/exit stamps (with clear dates)
• Photos together (alone, with family, friends) preferably with dates
• Engagement and travel photos together
• Messages and call records
• Cards, gifts, letters, money transfer records
• A written relationship timeline
• Affidavits from relatives or acquaintances confirming the relationship
• Entry records of the petitioner (for visits to a fiancé(e)/spouse in Vietnam)
• Hotel and travel receipts from trips taken together
• Engagement party receipts or invitations
• Shared assets such as wills, property, insurance, joint bank accounts, or jointly owned savings

8. I Was Previously Married to the Opposite Sex and Have a Child. Can My Same-Sex Partner Sponsor My Child to the U.S.?

Yes. Your partner may sponsor your child to the United States, provided that at the time of entry, the child is under 21 years old.

9. After the Consular Interview, What Outcomes Are Possible?

Several outcomes may occur:

• The consular officer is satisfied that the marriage is genuine and approves the visa.
• The officer has doubts and issues a refusal under 221(g), requesting additional documents or explanations.
• The officer keeps the file for further review, meaning additional investigation may be conducted based on the submitted statements and evidence.
• The officer denies the case if they do not believe the relationship is genuine. In this situation, the petition may be returned to USCIS.

10. If My Same-Sex Marriage/Fiancé(e) Petition Is Returned by USCIS, What Should I Do?

You may:
a. Refile a K1 fiancé(e) petition (only after two years from the date USCIS reaffirmed the prior denial).
b. Get married in a country that recognizes same-sex marriage and then file under the CR1/IR1 spousal category.

11. I Am a Lawful Permanent Resident. Can I Sponsor a Same-Sex Fiancé(e)?

Only U.S. citizens may sponsor a same-sex fiancé(e). Lawful permanent residents cannot sponsor a fiancé(e).

12. After Receiving a Visa, Once My Same-Sex Fiancé(e) Arrives in the U.S., What Must We Do to Make the Marriage Legal in the U.S.?

After the fiancé(e) enters the United States with a K1 visa, you must legally marry within 90 days. After the marriage, you must file for Adjustment of Status to obtain lawful permanent residence (a green card).

Frequently Asked Questions for Same-Sex Marriage Sponsorship

Question: I am a U.S. citizen or lawful permanent resident living in the United States. I am in a same-sex relationship with a partner in another country. Can I sponsor my partner for a family-based immigrant visa?

Answer: Yes, you may file a family-based petition. You can submit Form I-130 (along with other required forms). The eligibility requirements are the same as for opposite-sex spouses under immigration law, and your case will not be denied solely because it is a same-sex marriage.

Question: I am a U.S. citizen engaged to a same-sex partner who is a foreign national. Can I file a fiancé(e) petition?

Answer: Yes. You may file Form I-129F, provided all eligibility requirements are met. A same-sex fiancé(e) may enter the United States to marry in a legally recognized marriage.

Question: We were legally married in a country that recognizes same-sex marriage, but we are currently living in a country that does not recognize it. Can I still sponsor my spouse for an immigrant visa?

Answer: Yes. The key issue is whether the marriage was legally valid where it was performed. USCIS recognizes marriages that are legally valid in the place of celebration. The laws of the country where you currently reside do not determine whether USCIS will recognize the marriage for immigration purposes.

Question: Do I need to wait for USCIS to issue new regulations or guidance regarding same-sex visa petitions based on the Supreme Court’s decision in Windsor?

Answer: No. You may file a same-sex marriage petition now, as long as you meet all eligibility requirements.

Question: My Form I-130 and related documents were previously denied under the Defense of Marriage Act (DOMA). What should I do?

Answer: USCIS has reopened certain cases that were denied under Section 3 of DOMA. If your case falls into this category, USCIS may review and reopen the petition and related applications (including Form I-485, if applicable).

For petitions denied solely under Section 3 of DOMA, USCIS may reconsider them without regard to that provision, based on the information originally submitted and any new evidence provided. USCIS may also reopen associated applications such as Form I-485 if necessary.

If your employment authorization (EAD) was denied or revoked based on a denied I-485, that decision may also be reviewed. USCIS may either continue to adjudicate any pending applications or reopen previously denied applications and accept previously issued Employment Authorization Documents (EADs), provided they were not otherwise terminated. In some cases, USCIS may request updated information or schedule an appointment at an Application Support Center (ASC).

USCIS will not automatically reopen every same-sex marriage petition. In some cases, you may need to file a new petition and pay the required fees, depending on the circumstances.

Question: With respect to other immigration benefits such as sibling petitions, family reunification, and fiancé(e) petitions, where the law refers to terms like “marriage” or the filing of a petition as a “spouse,” are same-sex marriages recognized as qualifying marriages for these benefits?

Answer: Yes. Under U.S. immigration law, eligibility for various benefits depends on the definitions of “marriage” or “spouse.” These benefits include (but are not limited to) immigrant visas for spouses, derivative status for accompanying family members, family-based petitions, and employment-based immigration where applicable. In all such cases, same-sex marriages are treated the same as opposite-sex marriages.

Question: If I am seeking a benefit under a category that requires me to be a “child,” “son or daughter,” “parent,” or “sibling” of a U.S. citizen or lawful permanent resident, does a same-sex marriage affect my eligibility?

Answer: In some situations, a parent’s prior marriage may affect whether a person qualifies as a “child,” “son or daughter,” “parent,” or “sibling” of a U.S. citizen or lawful permanent resident. In such cases, same-sex marriages are evaluated in the same manner as other legally valid marriages.

Question: Do same-sex marriages shorten the residency requirement for naturalization like other marriages?

Answer: Generally, a lawful permanent resident must reside in the United States for five years before applying for naturalization. However, under U.S. immigration law, a person may apply after three years if they have been living in marital union with a U.S. citizen during that three-year period. For this purpose, same-sex marriages are treated the same as opposite-sex marriages.

Question: I understand that immigration law allows discretionary waivers in certain situations. For such waivers, the applicant must usually have a qualifying relative such as a “spouse” or “parent” who is a U.S. citizen or lawful permanent resident. Are same-sex marriages recognized for purposes of qualifying for these waivers?

Answer: Whenever immigration law permits a waiver based on the existence of a “spouse” or similar qualifying relationship, same-sex marriages are treated the same as other legally valid marriages.

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