The Washington Blade hosted a live videoconference on visas for same-sex spouses on August 8. The topic is timely because Secretary of State Kerry just announced on August 2 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.”
The videoconference panelists included David Stewart, Consul General of the U.S. Embassy in London; Don Heflin, Managing Director of the State Department’s Visa Office; and Victoria Neilson, Legal Director of Immigration Equality, which advocates on behalf of LGBT and HIV-positive individuals.
There were a few interesting points:
1. F-2 and J-2 visas: These visas are available to the spouses of F-1 students and J-2 exchange visitors. A prerequisite for applying is that the school or sponsoring institution must issue for the spouse either a Form I-20 or a Form DS-2019 naming the spouse. The State Department has now instructed schools and institutions to issue such notices.
2. Expediting Visa Applications: Will the State Department expedite visa applications for same-sex couples, in light of the fact that State unconstitutionally refused to approve such applications for so long, causing hardship to these families? Heflin gave no clear answer on this question. He mentioned only that Consulates routinely expedite nonimmigrant visas for students and the children of nonimmigrant workers (regardless of sexual orientation) who need to enter the U.S. in time to start the school year timely.
3. Civil unions: Will civil unions be recognized for purposes of immigrant and nonimmigrant visa issuance to same-sex partners? The Supreme Court in Windsor removed restrictions on same-sex marriage but was silent on domestic partnership. Heflin repeated the State Department position that federal government agencies are working together and looking at this more difficult question. It will likely take months to resolve how civil unions are viewed. Ms. Nelson offered that these couples should consider entering into a legal marriage in a jurisdiction where that’s possible. She also mentioned that there is a provision in the State Department’s Foreign Affairs Manual that recognizes “common law marriages” in circumstances for immigration purposes where they are equivalent to marriage in the state where they occur. A legal argument could be made that civil unions are common law marriages, but State hasn’t accepted this interpretation to date.