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Immigrant Visa Section

Same Sex Marriages

For U.S. Visa and Immigration purposes, all legal marriages are now considered equal. Following the Supreme Court decision in United States v. Windsor, the U.S. State Department will immediately begin to recognize same-sex marriages for immigration and visa purposes. A same-sex marriage is valid for U.S. visa purposes even if the applicant is applying for his/her visa in a country in which the marriage is not considered legal. If local authorities recognize legal partnerships as separate and different from marriage, such partnerships cannot be the basis of a visa or immigration benefit at this time. Lastly, same-sex partners of U.S. citizens may apply for Fiancé nonimmigrant K-1 visas to wed and file immigration paperwork within the United States.

Nonimmigrant Visa (NIV) Policy

Beginning immediately, same-sex spouses and their children are eligible for NIV derivative visas. Same-sex spouses and their children (stepchildren of the primary applicant when the marriage takes place before the child turns 18) can qualify as derivatives where the law permits issuance of a visa to a spouse or stepchild.

Some NIV classifications require certain documentation before a visa issuance can take place. For example, family members of F and M student visa applicants (F-2 and M-2) need to obtain an I-20 prior to issuance. Spouses of exchange visitors (J-2) need an approved DS-2019.

Immigrant Visa (IV) Policy

A spouse of a U.S. citizen, as well as a spouse of a Lawful Permanent Resident (LPR), may apply for an immigrant visa once the Office of Citizenship and Immigration Services (USCIS) approves an I-130 immigrant visa petition. The validity of a marriage will depend on whether it was legally valid in the place of celebration, rather than the place of domicile. Stepchildren of same-sex couples may be included as beneficiaries on the I-130 petition. In addition to family-preference categories, same-sex spouses and their dependents may also qualify as dependents of employment-based categories, and as follow-to-join derivatives. Finally, persons participating in the DV program (Green Card Lottery) may include same-sex spouses in their initial entry or add a spouse if the marriage took place after their initial registration.

Many same-sex couples live abroad in countries where they are unable to marry. Starting immediately, same-sex partners of U.S. citizens may apply for Fiancé nonimmigrant K-1 visas to wed in the United States. Once the union is contracted in a state permitting same-sex marriage, the foreign spouse may apply for adjustment to Legal Permanent Resident (LPR) status through USCIS, or the U.S. citizen may file an I-130 with USCIS. Detailed information about K-1 visas is available at our homepage at: http://austria.usembassy.gov/iv_k_visa.html

USCIS – FAQs

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