Change of Consular Venue Possible in Same Sex Marriage Cases

AILA reported that tollowing the Supreme Court’s decision in Windsor v. U.S., striking key provisions of the Defense of Marriage Act (DOMA), AILA has been working to establish a procedure for changing venue for immigrant visa processing in cases where the safety of the applicant may be at issue if he or she is made to return “home” to appear for an interview.

At a recent meeting, the AILA Department of State Liaison Committee raised the issue with DOS. DOS understood the issues facing LGBT applicants who fear returning to their home countries and was quick to act by contacting the National Visa Center and coming up with the following solution:
‐ File the I‐130 petition as you normally would by designating the consular post in the beneficiary’s “home” country.
o Designating any other jurisdiction may delay USCIS processing of the I‐130;
‐ Once the I‐130 is approved and the case is transferred to the NVC, e‐mail the NVC at nvcattorney@state.gov and provide the following in the body of the e‐mail:
o NVC case number;
o Principal applicant’s name and date of birth;
o Family‐based petitioner’s name and date of birth;
o If the visa petition is employment‐based, include the petitioning employer’s company or organization name.
‐ In the e‐mail, provide all of the reasons the applicant is afraid or unable to travel to the “home” country (i.e. fear of government persecution, fear of family/community persecution, etc.). Include as much information as possible, such as country conditions for LGBT people, but note that the fear does not have to rise to the level that would be required for asylum.

‐ Once you have made the argument for a change of venue, suggest up to three alternate venues, in order of preference, where you would like the applicant to apply. When choosing alternate venues, bear in mind that the applicant may need a visa to travel to certain third countries based on his/her nationality and may not be able to obtain one for the sole purpose of third country visa processing.

‐ NVC will contact the designated posts, provide the information forming the basis for the change of venue, and ask if they will take jurisdiction over the case. Please note that certain consulates may not be able to take jurisdiction based on workload.

‐ Once a post confirms that it will take jurisdiction over the case, the NVC will advise you accordingly and will note it in the beneficiary’s “A file” so that it is transferred to the appropriate consular post.

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