Protections for Same-Sex Couples in Consular Processing Cases

Since June 2013, same-sex couples have been eligible for the same type of U.S. immigration benefits as opposite-sex couples. This policy shift, however, has given rise to safety concerns for beneficiaries in certain types of cases involving same-sex couples; more specifically, the U.S. Department of State (DOS) is concerned with the safety of foreign national beneficiaries who live in countries where being identified as homosexual may have dire, perhaps even deadly, consequences. To that end, the DOS has put procedures in place to help reduce the risk of exposure for beneficiaries in such cases.

Background: National Visa Center

The National Visa Center (NVC) acts as the intermediary between the U.S. Citizenship and Immigration Services (USCIS) and the DOS in permanent residency (commonly, “green card”) cases that are using consular processing (CP), as well as in K-1 (fiancé/e) and K-3 (spousal) cases. In these types of cases, the NVC is responsible for scheduling the beneficiary for a visa appointment at the appropriate U.S. embassy or consulate. This appointment typically is scheduled at the designated post in the beneficiary’s country of residence. However, if doing so could potentially put the beneficiary in jeopardy, the NVC has the discretion grant a request to change the venue to a different consular post. More information about the general process of the NVC is available in the MurthyDotCom NewsBrief, Role of National Visa Center in Immigrant Visa Cases.

Request for Venue Change in Immigrant Visa Cases

In a family-based green card case filed for CP, if the petition for an alien relative (I-130) is based on a same-sex marriage, the request for a change of venue can be made to the NVC once it has received the file from the USCIS. Such a request can also be made in an employment-based CP case filed for a same-sex derivative (i.e. dependent) beneficiary.

Provide Reason for Venue Change and Alternative Locations

The request for a venue change should include an explanation as to why the change is necessary. For instance, the request may be based on a fear of persecution of the beneficiary by the local government or members of the community. While the basis for this fear should be well documented, the supporting evidence does not need to be as strong as the level of evidence required in an asylum application based on a fear of persecution.

The venue change request should also include a list of three alternate consular posts where the beneficiary would prefer to be interviewed. Assuming the request is approved, the NVC will then schedule the appointment at one of the alternative locations, notify the beneficiary of the location, date, and time of the appointment, and forward the person’s case file to that post.

Same-Sex K-1 Visa Cases Follow Different Process

There is a slightly different procedure for requesting a change of venue in a K-1 case (and/or a K-2 case, which is for the minor child of a K-1 beneficiary). A K-1 or K-2 case typically will remain only with the NVC for a few days after petition approval by the USCIS. Because of this short turnaround time, the NVC has established a modified procedure, which was clarified in a December 2014 meeting held between representatives of the DOS and the American Immigration Lawyers Association (AILA). As explained by the NVC, in this situation, the petition should be filed as usual, requesting the interview at the consulate in the beneficiary’s home country. Once a receipt noticed is issued by the USCIS on the case, however, either the petitioner or the beneficiary should send an eMail to the NVC requesting the venue change. Again, the request should provide an explanation of the need to change the venue, and should include a list of two or three alternative posts.

Petitioners Discouraged from Requesting Venue Change in the Petition

It should be noted that the petitioner has the opportunity to request a change of venue on the I-130 form (or the I-129F, petition for alien fiancé/e). This request would be reviewed by the USCIS prior to the case being sent to the NVC. The DOS, however, discourages petitioners from requesting a venue change in this manner, as it may cause delays in the processing of the case. Rather, making the request through the NVC, as described above, appears to be the preferred method.

Conclusion

It is unfortunate that a beneficiary may be so fearful that a change in venue is necessary. It is reassuring, however, that the DOS is aware of this potential threat and has taken proactive steps to reduce the risk to same-sex couples in unsafe locations.

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