BINATIONAL SAME SEX COUPLES !! Show up!

[zuluweta 250]

Good news for LGBT US citizens with a deported partner/spouse! You may now bring your deported partner/spouse back to the USA. As with complicated cases, please consult with an immigration lawyer.

Reopening Deportation Orders Based On Same-Sex Marriage

by Robert Reeves, Asian Journal (October 30, 2014)

For same-sex couples, years of discrimination and unequal treatment in all aspects of public and private life has meant lack of access to numerous benefits that heterosexual couples take for granted. Key among these benefits has been the right to apply fora immigration benefits and for relief from deportation based on marriage or a family relationship based on marriage. Thus, many people have been ordered deported because immigration authorities did not recognize their right to apply for relief from deportation based on same-sex relationships. A newly announced policy from Immigrations and Customs Enforcement (ICE) seeks to remedy, to some degree, the harmful impact of the previously discriminatory legal framework.

In recent history, it was DOMA (the Defense of Marriage Act) which was used to deny same-sex couples access to Federal immigration benefits even where couples were legally married according to state law or the law of their residence. However, in 2013 the US Supreme Court issued a ground-breaking decision striking down DOMA as unconstitutional and laying the foundation for same-sex couples to obtain benefits under U.S. Federal laws. The excitement over the decision grew as United States Citizenship and Immigration Services (USCIS) as well as the Department of State (DOS) and the Executive Office for Immigration Review (EOIR) announced that same-sex couples could apply for benefits under US immigration law and would be treated identically to other applicants.

Currently, USCIS, DOS, and EOIR treat applicants for all types of benefits including family and employment based immigrant visa petitions, applications for relief from deportation, as well as non-immigrant visa benefits equally. This policy is more far reaching than just granting green cards to those married to a same sex partner. Almost all waivers for grounds of inadmissibility or removability require a qualifying relative who will experience extreme (or higher) hardship if the non-citizen is deported. Qualifying relatives include parents, spouses and children (or adult sons and daughters) of the person needing the waiver. Before the change in law, the hardship to these family members was not taken into consideration because the family relationship was not recognized. But now it is.

But one group of people did not benefit from the change in lawuntil now. In the years leading up to this monumental policy shift, thousands of people have been ordered deported because they could not qualify for immigration benefits based on their same-sex relationships and thus were unable to apply for relief from deportation proceedings.

Thankfully, ICE has recently announced a new policy that will allow many people who were previously ordered deported or removed to seek to reopen their cases and apply for relief from removal even though they might have been ordered deported many years ago. Generally a motion to reopen deportation proceedings must be filed within 90 days of the date of the final order of removal. However, where an ICE attorney agrees to cooperate in seeking the reopening of a past deportation order, the time limits can be waived. ICEs new policy is to cooperate if a person can show they are now in a bona fide same-sex marriage that qualifies the previously deported person for potential relief from deportation.

Determining whether a person is qualified for relief from removal requires careful analysis. However, it is not enough merely to be married to a US citizen. The couple will need to show that the marriage is not just legal but real. In other words, that it is based on a true relationship where the couple intends to live together as a married unit.

Each form of relief from removal including adjustment of status, cancellation of removal, waivers of removal or inadmissibility, has its own set of requirements that must be established before an immigration judge. The analysis of eligibility for relief must be completed prior to approaching ICE with a request to reopen a case. In addition to showing statutory eligibility, the alien will have to show that ICE should join in the exercise of their discretion.

If you or a loved one were previously ordered deported or removed and are now in a same-sex marriage, you may qualify to have your deportation proceedings reopened so that you can apply for relief from removal and possibly gain lawful permanent resident status. Of course, you must still be otherwise eligible for permanent residency or the relief from deportation you are seeking. If this new policy may impact you it is essential that you consult with an experienced immigration attorney to evaluate your case.

Link to rest of article here:

http://tinyurl.com/nzy2f7o

[Sukie 1,440]

Hi folks,

I have posted the same question in the "What Visa Should I Get" section, but since we have our own LGBT corner here I might as well give it a try too:

I am the foreign partner (from Hong Kong) of a same sex relationship with an American.

Our story is that we met over 20 years ago, and at the beginning we maintained a long distance relationship but for most of those 20 years we have a very close and ongoing friendship. Our bonding starts to become stronger again since two years ago and after gay marriage becomes legal, we begin to look at marriage as an option.

I am now in the US for a tourist visa, mainly to see if we can properly live together for real. It's been two months now and we have come to the point that we know we want to get hitched.

We have looked through the information here and cannot decide whether we should go for the K1 fiancé visa or the IR-1. Since there's no legal gay marriage in Hong Kong, for the IR-1 to work we are thinking of making a quick trip to Canada since I have been told that it's not wise to get married in the US while I am on a tourist visa.

It may be too general a question but we are looking to find the shortest route to get my status so we can be together in the US for now (our base is Albany, CA).

In terms of proving our relationship, we have emails, documents, etc and also a lot of our mutual friends here are willing to sign affidavits for us. But there won't be any joint properties, etc, yet.

In terms of our background we both have professional qualifications.

In terms of finance I have a comfortable level of saving (though probably not relevant for the application) and though he doesn't make a lot as he works for a non-profit, it's well above the required above poverty level. And we even have a rich friend volunteers to be a co-sponsor if necessary.

Any of your inputs are well appreciated.

Lots of good advice here.

If you marry and go the AOS route, you need to stay in the US until you get through the process. If you need to go back to HK to finish things up, then this option is not for you.

If you marry and file for a CR-1 visa, you will have to return to Hong Kong, but it will take 12 -14 months before you will get your approvals. It will be also very tricky to get back to the US during this time, so hopefully your USC partner can visit YOU in Hong Kong.

If you go the K-1 route, then you can file right away, but the approval can take 5-7 months these days. You will have to remain in Hong Kong until it comes through (Is HK on the VWP?).

So...the timing issues may be the biggest part driving your choice of what to do. We had the opportunity to file AOS, but my partner's mother was dying, so we could not use this method and had to go CR-1. It took us exactly one year to get through the process.

Affidavits are fine, but not considered the strongest evidence. Financial "togetherness" is highest on the "evidence" totem pole. Joint bank accounts, joint travel, having each other as beneficiary on wills and insurance policies. Evidence that your families of origin know about your relationship (and hopefully lovingly support you) is good. Since you are now in the US, open a joint checking account and credit card with your intended. If you drive, see if you can get added to his auto insurance (might be hard without a US driver's license - it depends on the state). Make wills and name each other as beneficiaries.

Not sure why you have to go to Canada to get married. You only need to go to a state where you are allowed to marry as a non-resident. There are 35 of them to choose from now!

Good luck to you. I lived in HK for five years (2006-2011) and met my Australian spouse during that time. Luckily, Australia allowed me a residency visa based on "de facto" law, since Australia still does not recognize our US-based marriage. My spouse received her green card this summer.

Sukie in NY

[NYCruiser 423]

Lots of good advice here.

If you marry and go the AOS route, you need to stay in the US until you get through the process. If you need to go back to HK to finish things up, then this option is not for you.

If you marry and file for a CR-1 visa, you will have to return to Hong Kong, but it will take 12 -14 months before you will get your approvals. It will be also very tricky to get back to the US during this time, so hopefully your USC partner can visit YOU in Hong Kong.

If you go the K-1 route, then you can file right away, but the approval can take 5-7 months these days. You will have to remain in Hong Kong until it comes through (Is HK on the VWP?).

So...the timing issues may be the biggest part driving your choice of what to do. We had the opportunity to file AOS, but my partner's mother was dying, so we could not use this method and had to go CR-1. It took us exactly one year to get through the process.

Affidavits are fine, but not considered the strongest evidence. Financial "togetherness" is highest on the "evidence" totem pole. Joint bank accounts, joint travel, having each other as beneficiary on wills and insurance policies. Evidence that your families of origin know about your relationship (and hopefully lovingly support you) is good. Since you are now in the US, open a joint checking account and credit card with your intended. If you drive, see if you can get added to his auto insurance (might be hard without a US driver's license - it depends on the state). Make wills and name each other as beneficiaries.

Not sure why you have to go to Canada to get married. You only need to go to a state where you are allowed to marry as a non-resident. There are 35 of them to choose from now!

Good luck to you. I lived in HK for five years (2006-2011) and met my Australian spouse during that time. Luckily, Australia allowed me a residency visa based on "de facto" law, since Australia still does not recognize our US-based marriage. My spouse received her green card this summer.

Sukie in NY

I believe if he files for AOS, he is eligible to file for Advance Parole Document (this allows him to go out of the USA for a visit but return after the visit is over). The document is filed with the AOS.

I think he is in California? The CSC is taking minimum of 3 weeks to approve the I-129f, then a couple of months later he should get his K1 to come here. Anyone from the west pipe in

David

[komnaes 0]

I believe if he files for AOS, he is eligible to file for Advance Parole Document (this allows him to go out of the USA for a visit but return after the visit is over). The document is filed with the AOS.

I think he is in California? The CSC is taking minimum of 3 weeks to approve the I-129f, then a couple of months later he should get his K1 to come here. Anyone from the west pipe in

David

Hi David, again thanks so much for your help, and Sukie's too.

For the first paragraph, yes, we can apply for Parole and also stay to allow employment if we get married now and begin the CR1 process, but it will still take at least 2 to 3 months to approve (that's my understanding, I can be wrong and need further advices). I need to be back in 3 weeks.

And for the second paragraph, yes, we're in CA, and it took more than 5 months for one of our friends to get her K1 recently (late last year). The husband is in Oakland and she got her K1 from the US Embassy in Tokyo.

So for us I suppose it now comes down to K1 or CR1:

• for K1, we will start preparing now, and begin as soon as we can once I leave the US (late Nov). I think the definitive advice in Visa Journey is that I can still come during the process, noting that there may be problems at the POE.
• for CR1, we maybe looking at two options:

1. Get married now, once I leave we begin the CR1 process, providing that it's indeed the case I can still visit with a tourist visa like the K1 scenario mentioned above.
2. Not get married now, return to Hong Kong, come back when convenient, say late Dec or early Jan, hang out a bit like this time, apply for CR in a month time or so. Since I will not need to return anytime soon like this trip, I can afford the time to wait and apply for parole to leave the country and also a temporary stay to seek for employment, assuming that it's indeed possible.

Can you or anyone help to guide us through these routes?

As I was talking to my partner last night, he was also wondering if he could go with me this trip back to Hong Kong to get registered in the US consulate there. Assuming that the US Consulate in Hong Kong does register for gay couples (we need confirmation), how will the AoS process begin at that point.

Again, thanks in advance of all your kind help.

[Sukie 1,440]

Dear Friends,

I'm feeling rather depressed at the results of the US elections today (I voted absentee from Australia). I so fear what this Republican-led Congress is going to try - I do expect them to try to get another DOMA-type law through. If I remember my high-school civics correctly, if a new DOMA law were to pass Congress, it would go to Obama for approval. He can veto it - and will. Then it goes back to the Senate and they have to approve it by 66%. They don't have enough votes to do that, but I think they will darn well try.

We've all worked so hard to get the right to marry and to bring our spouses to the US. I hate the fact that about 50% of the US hates us, and hates our marriages, and that we could face some very nasty fights.

I'm usually pretty bubbly and optimistic, but I'm very disappointed (and, quite frankly, afraid) in the near future.

Sukie in Oz

[dsldesch 27]

Dear Friends,

I'm feeling rather depressed at the results of the US elections today (I voted absentee from Australia). I so fear what this Republican-led Congress is going to try - I do expect them to try to get another DOMA-type law through. If I remember my high-school civics correctly, if a new DOMA law were to pass Congress, it would go to Obama for approval. He can veto it - and will. Then it goes back to the Senate and they have to approve it by 66%. They don't have enough votes to do that, but I think they will darn well try.

We've all worked so hard to get the right to marry and to bring our spouses to the US. I hate the fact that about 50% of the US hates us, and hates our marriages, and that we could face some very nasty fights.

I'm usually pretty bubbly and optimistic, but I'm very disappointed (and, quite frankly, afraid) in the near future.

Sukie in Oz

I feel your concerns, but I also know it's too early to give up the fight. At least in North Carolina where I live, less than two percentage points divided the outcome--that means support for the majority is only minimally a majority, and not all Republican voters are against LGBT rights anyways. In fact, the tide for LGBT rights is changing swiftly--and the Republican party will have to reflect that in time or lose supporters because of it.

More importantly, the elected officials represent everyone--that means Thom Tillis in NC also represents the 51% of the state who DIDN'T vote for him. The important part for all of us is that we become active citizens--calling our members of Congress, writing them letters, and making sure they know where we stand on the issues. They get paid with our tax dollars. They work for us. And it's time we hold them each accountable to their constituents and their country. They're not in this game for themselves--they're in it for us. That means if (or when) our rights come to a vote, we need to organize ourselves, mail in letters, make phone calls, and let them know we are not turning back--and for them to vote to turn back will be to vote against a majority of their constituents.

They still might vote against us, but then they'll risk losing a vote back into office--and for a politician, that's the ultimate price to pay.

[FulanoDeTal 19]

Dear Friends,

I'm feeling rather depressed at the results of the US elections today (I voted absentee from Australia). I so fear what this Republican-led Congress is going to try - I do expect them to try to get another DOMA-type law through. If I remember my high-school civics correctly, if a new DOMA law were to pass Congress, it would go to Obama for approval. He can veto it - and will. Then it goes back to the Senate and they have to approve it by 66%. They don't have enough votes to do that, but I think they will darn well try.

We've all worked so hard to get the right to marry and to bring our spouses to the US. I hate the fact that about 50% of the US hates us, and hates our marriages, and that we could face some very nasty fights.

I'm usually pretty bubbly and optimistic, but I'm very disappointed (and, quite frankly, afraid) in the near future.

Sukie in Oz

Sukie,

The Supreme Court was pretty clear in Winsor that marriage is a state-law issue, so I don't think we'll be seeing any more attempts at a federal definition of "marriage," which was the DOMA problem. At most, I can see the Republicans trying to figure out a way to preserve marriage restictions in states that already have them, although that will be an uphill battle because of the slew of federal court decisions this year and the Supreme Court's refusal to take up the issue this term. While this election was certainly a referendum on Obama's popularity, it's clear that most of the states involved were "Red States" anyway, so while the results are disppointing they're not entirely suprising. Keep your spirits up, I truly believe things will ultimately work out when people realize that the world has not collapsed because someone can marry the person whom he or she loves.

[hklad 9]

Hi David, again thanks so much for your help, and Sukie's too.

For the first paragraph, yes, we can apply for Parole and also stay to allow employment if we get married now and begin the CR1 process, but it will still take at least 2 to 3 months to approve (that's my understanding, I can be wrong and need further advices). I need to be back in 3 weeks.

And for the second paragraph, yes, we're in CA, and it took more than 5 months for one of our friends to get her K1 recently (late last year). The husband is in Oakland and she got her K1 from the US Embassy in Tokyo.

So for us I suppose it now comes down to K1 or CR1:

• for K1, we will start preparing now, and begin as soon as we can once I leave the US (late Nov). I think the definitive advice in Visa Journey is that I can still come during the process, noting that there may be problems at the POE.
• for CR1, we maybe looking at two options:

1. Get married now, once I leave we begin the CR1 process, providing that it's indeed the case I can still visit with a tourist visa like the K1 scenario mentioned above.
2. Not get married now, return to Hong Kong, come back when convenient, say late Dec or early Jan, hang out a bit like this time, apply for CR in a month time or so. Since I will not need to return anytime soon like this trip, I can afford the time to wait and apply for parole to leave the country and also a temporary stay to seek for employment, assuming that it's indeed possible.

Can you or anyone help to guide us through these routes?

As I was talking to my partner last night, he was also wondering if he could go with me this trip back to Hong Kong to get registered in the US consulate there. Assuming that the US Consulate in Hong Kong does register for gay couples (we need confirmation), how will the AoS process begin at that point.

Again, thanks in advance of all your kind help.

1. The standard processing time for AP / EAD once a I-485 (AoS) petition is filed is 90 days. At the 75th days, you can inquire if you don't hear anything about your AP case. I suggest you to plan on three months before you get AP card and you cannot leave the US and keep the AoS alive before you receive you AP card. Since you mentioned employment, that's the EAD part of the application. The processing time is the same as the AP and you will receive a "combo" card if you apply for both. So while you wait out the 90 days, you cannot legally work.

2. Our I-129F went through CSC. While it is true they approved it quickly, they took their sweet time before sending it off to NVC! I think my friend who went through TSC ended up beating us to NVC and then to the embassy. That was in Fall 2013, so it could have changed now.

3. You are allowed to keep the B2 until the interview at the embassy. If you do visit while you have a pending I-129F and come visit on a B2, you have to disclose it at the border and it is entirely up to the officer to let you in or turn you around. You'd probably have to show ties (such as an employment) to HK, but it's still a gamble and the plane tickets aren't cheap.

4. I went through the K1 route, so not sure about visiting on a B2 with a pending CR1. I don't think it would be any difference except that you now have a family (your husband) in the US. This alone could be immigrant intent. I suggest you to search the CR1 / IR1 forum. I am sure this has been asked there before.

5. Under your point 2., you wouldn't be going though CR (which is a visa). You'd be going through the AoS (resulting not in a visa, but a GC), assuming you are successful in coming back within 2 months, which is a rather short period of time to be visiting the US twice. Also, be careful of your answers to the officer at that time because if you make a misrepresentation, you just don't know if that get recorded in the system and it could give you problems at AoS down the road. I am not one to point finger to say you are breaking the rules (as you can search VJ and find plenty of finger pointers). I am just pointing out the risk. We went the K1 route, and it is the route that is prescribed by the USCIS so there was no need to fear. Doing the B2 then AoS is just a bit risky in my opinion, but you have to decide what's best for you. I'd say if you can stay now and not have to leave at the end of November, then this may be a viable option.

6. I have not heard of same-sex registration at the US Consulate - HK. I did have my K1 interview there and there was no problem at all. Everything was conducted respectfully and professionally. You can read my timeline and review of my embassy experience. Note: Don't waste your time trying to get your spouse into the interview. It is not allowed in HK, citing security reasons.

Good luck.

[hklad 9]

Sukie,

The Supreme Court was pretty clear in Winsor that marriage is a state-law issue, so I don't think we'll be seeing any more attempts at a federal definition of "marriage," which was the DOMA problem. At most, I can see the Republicans trying to figure out a way to preserve marriage restictions in states that already have them, although that will be an uphill battle because of the slew of federal court decisions this year and the Supreme Court's refusal to take up the issue this term. While this election was certainly a referendum on Obama's popularity, it's clear that most of the states involved were "Red States" anyway, so while the results are disppointing they're not entirely suprising. Keep your spirits up, I truly believe things will ultimately work out when people realize that the world has not collapsed because someone can marry the person whom he or she loves.

Thanks to the 6th Circuit, which just upheld the marriage ban in Michigan, Ohio, Kentucky and Tennessee, we may see the case back at the Supreme Court again. The dissenting judge, a Clinton appointee actually wrote that she thought the two majority judges (both appointed by G.W. Bush) purposely forced a split in the circuit decisions to force the Supreme Court to take up the case. Living in Ohio, I am not worried. I am just disgusted!

[moemac59 192]

Not a same sex couple but just found this topic on VJ and so nice to see that same sex couples are finally allowed to get married and have the same benefits as everyone else. Here's wishing all of you the best of luck in your journey's fingers crossed for all of you that it goes smoothly.

[NYjones 13]

Just a little update. ..money order was cashed on the 5th November. We have yet to receive electronic notification though. Any Update From Anyone else?

[NYCruiser 423]

Just a little update. ..money order was cashed on the 5th November. We have yet to receive electronic notification though. Any Update From Anyone else?

Oh the govt cashes these checks very very fast....now why dont they work as fast???

[NYjones 13]

Oh the govt cashes these checks very very fast....now why dont they work as fast???

O, I know! With the holidays coming I don't think a speed up is likely either!

[Nikkosan 127]

Not a same sex couple but just found this topic on VJ and so nice to see that same sex couples are finally allowed to get married and have the same benefits as everyone else. Here's wishing all of you the best of luck in your journey's fingers crossed for all of you that it goes smoothly.

Thank YOU for YOUR support!

[Derwood 202]

How's everybody doing? I haven't checked in on the same-sex filers thread for ages and I really should have done. Our AOS application was selected for potential interview waiver and we've now joined a very long and very slow moving line.

Another same-sex couple, friends of ours, have just filed their K1 petition. It's gone to CSC but they seem to have slowed right down too. I'm so thankful that our K1 went through quickly and we were not separated for that long.

I hope you're all doing good.