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New Rule for Same-Sex Partners of Diplomats and International Organization Employees

The United States Department of State announced that diplomats (A-1 and A-2) and international organization employees (G-1, G-2 and G-3) will henceforth be required to prove they are legally married to their same-sex partners in order for the partners to obtain derivative visas to come to the United States. The new rule applies to foreign diplomats and other government officials based in the United States and also includes employees of certain international organizations such as the United Nations, NATO, the International Monetary Fund and the World Bank.

The State Department said the rule change will provide consistent treatment for diplomats with opposite-sex partners and ones with same-sex partners. U.S. embassies and consulates will now adjudicate visa applications that are based on a same-sex marriage in the same way that applications for opposite-sex spouses are adjudicated. Under current rules, a diplomat must be married for his or her opposite-sex partner to obtain a derivative family visa. Many argue that the rule change will create hardships for diplomats from countries where same-sex marriage is not legal. Currently, a little over two dozen countries allow same-sex marriage, but in most countries it is still illegal.

In order to receive a derivative visa, the government requires proof of a valid marriage. A spouse also must reside regularly in the household of the principle alien and not be a member of another household. Unmarried children and stepchildren from a same-sex marriage, who reside regularly in the household of the principal alien and are not members of some other household, are eligible for a family visa if under the age of 21 (or under 23 if they are full-time students at post-secondary educational institutions). A person may also be considered an immediate family member, eligible for a family visa, if that person resides regularly in the household of the principal alien; is not a member of some other household and can provide proof that he or she is recognized as an immediate family member by the sending government or international organization.

There is a limited exception to the new policy for diplomats whose country has not legalized same-sex marriage, but does give same-sex spouses of U.S diplomats and government officials in that country the same privileges and immunities as opposite-sex spouses. In order to maintain or obtain a U.S. family visa for a same-sex spouse, the diplomat must provide proof that same-sex marriage is not legal in the sending state and that the sending country does recognize the accreditation of U.S. same-sex spouses as it would for opposite-sex spouses.

The policy change was introduced in July and the State Department announced the new rule in a diplomatic note sent to the United Nations. The new policy went into effect on October 1, 2018. Diplomats have until the end of this year to provide proof of valid marriage to maintain derivative family visas for their spouses. For immigration purposes, the legal validity of a marriage is determined by the law in the place where the wedding took place (“the place-of-celebration rule”). After December 31, unless the unmarried partners are able to obtain separate authorization to remain in the United States through a change of nonimmigrant status, they will be expected to leave the United States within 30 days. However, in a briefing, a senior administration official stated that if the new requirements cannot be met by the deadline, the State Department will work with individuals on a case-by-case basis to try to adjust their status so they can remain in the United States legally.

Contact one of the immigration attorneys at Deutsch, Killea and Eapen, Immigration Law Firm, if you would like to consult on this policy change or on any other aspect of immigration law.

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