Marriage has been a right reserved only for heterosexual couples through the centuries. But, along with the development of civilization, same-sex couples finally got the legal right to marry or reap the benefits of marriage in a state that recognizes same sex marriage.
This includes filing the petition for the green card for the foreign national partner and getting the same sex marriage green card.
Unfortunately, in many countries across the world the situation hasn’t changed and same sex marriage laws don’t exist.
Same sex marriages through the U.S. History
The U.S. Congress and the U.S. Citizenship and Immigration Services (USCIS) deemed that same-sex marriages were illegal. Or in other words, only heterosexual marriages were counted for immigration purposes and heterosexual partners could get marriage based green card.
There are two rullings that made huge implications on same sex marriages, and that we are going to mention here shortly so we can understand how it impacts immigration issues.
#United States v. Windsor
In 1996, the Defense of Marriage Act (DOMA) limited federal marriage benefits and mandated that only opposite-sex marriages need to be legally recognized between states.
This prohibited recognition on the federal level, even for the same sex marriage that took place in state that legalized gay marriage.
In 2013, the U.S. Supreme Court ruled that Section 3 of DOMA defining “spouse” as only applying to marriages between men and women was unconstitutional. With this change, married same-sex couples got the same federal benefits as opposite-sex married couples.
This overturn of a provision in defense of the Marriage Act (“DOMA”) means that the same-sex married couple of U.S. citizens and green card holders (permanent residents) are now eligible to apply for marriage green card.
Still, states that had a ban on same-sex marriage were still not required to recognize such marriages.
#Obergefell v. Hodges
This changed with Obergefell v. Hodges case. J. Obergefell sued to be listed on the death certificate of his husband.
They got married in Maryland and the state of Ohio, where they lived, refused to recognize their marriage.
In 2015, the U.S. Supreme Court ruled that states cannot keep same-sex couples from marrying. Stating that the 14th Amendment of the U.S. Constitution, the Court noted they must recognize their unions, grants same-sex couples “equal dignity in the eyes of the law.”
But what about the same sex marriages in the U.S. today?
Can Same-Sex Couples Apply for a Green Card?
Married same-sex couples can now apply for a marriage based green card like opposite-sex marriage couples.
The case additionally required each U.S. state to license marriages between the same sex couples and recognizes a gay marriage when their marriage was lawfully licensed and performed in another state.
If you want to bring your same sex spouse to the U.S. you can file the Form I-130, Petition for Alien Relative and any related applications.
Your ability to get a gay marriage green card for your spouse will be based on U.S. immigration laws, not your status as a member of same-sex marriage.
The federal marriage equality decision (United States v. Windsor) means that U.S. states treat same-sex marriages the same way as heterosexual marriages for immigration purposes under U.S. law.
Marriages vs. Civil Unions
Before marriage equality was established throughout the U.S. by the Supreme Court, many gay and lesbian couples entered into civil unions.
Civil unions provided the same benefits as heterosexual marriage, but immigration benefits were not included.
So, to be eligible for a gay marriage green card, the same-sex couple must be married, not just joined in a civil union.
How Do I Petition for My Same-Sex Spouse?
To file the green card petition on behalf of your spouse, you need to go the same way that an opposite-sex married couple would:
This step can seem obvious, but according to what we mentioned earlier, note that you must be legally married to qualify for a family-based green card.
If the same-sex couple is still not married and one spouse is a U.S citizen, and the other is a foreign-born partner who is overseas, then they can file for a K-1 Fiancé Visa.
This nonimmigrant visa will allow your fiancé to come to the U.S. to marry you, but keep in mind that the marriage has to occur within 90 days of admission to the U.S.
#File Form I-130, Petition for Alien Relative
You need to file this form to establish your relationship with your same-sex spouse who wishes to immigrate to the U.S. To petition the U.S. government for a green card for your spouse, you must be a U.S. citizen or lawful permanent resident.
The foundation of marriage-based green cards is to prove that spouses have an authentic marriage and that they didn’t enter the marriage solely for immigration purposes.
There are no special requirements for same-sex couples so prepare the same supporting documents as heterosexual couples.
As you can guess, the primary evidence that you need to prepare is that you have an authentic marriage.
However, you also need to be prepared for a few potential more common challenges among same-sex couples than among heterosexual.
Common Concerns for Same-Sex Couples
United States Citizenship and Immigration Service (USCIS) treats same-sex couples applicants the same as immigration visa petitions from heterosexual couples.
Although, a U.S. citizen and a green card holder can apply for a marriage based green card for their foreign national spouses, they can face more obstacles.
Here we will mention some of them.
#You Don’t Have a Relationship With the In-law Family
When you think of proof that you have a legally valid marriage, don’t forget to include photos of you and your spouse and those with your respective families.
These are an excellent way to prove your relationship is authentic, so have them in the initial filing package.
These questions can be challenging for same-sex couples whose spouse’s family does not accept marriage or didn’t learn of your sexual orientation.
If this applies to your situation, remember that honesty is always the best approach, so if you haven’t met them, you should try to explain the reasons and not act utterly ignorant about it.
#How to Handle This Issue?
Although proving the legally valid marriage can be a challenge, there are many evidence from your every-day activities that you can include with your petition.
For example, correspondence between each spouse and his or her in-laws will demonstrate that you have a bona fide relationship. As a part of the marriage green cards process, you will attend the green card interview, so bring these photos.
Be ready to answer questions that the immigration officials conducting the green card interview will ask you about your spouse’s family, such as the names of your spouse’s mother, father, and siblings.
Also, they can ask you about certain events that you have attended together.
#Lack of employment or lease documents
Another strong proof that you have bona fide marriage is to show that you and your same-sex partner have a joint lease, joint bank accounts, or you listed your spouse on your employment documents as an emergency contact or as a beneficiary of employment-related benefits.
This also can be challenging for same-sex couples who fear discrimination, especially in the states where LGBTQ individuals are not legally protected from discrimination in housing or employment.
#How to Handle Lack of These Evidence?
Having a joint lease can be used as evidence that you and your spouse live together, but also, you can use other documents for this purpose like a joint utility bill, driver’s licenses or IDs showing the same address, or other official documents showing that you both live at the same place.
If you don’t have any employment-related documents where your spouse is mentioned, you can submit other documents:
- Joint bank account statements
- Documents showing you as the beneficiaries of each other’s life insurance policies (which need not be employer-provided)
- Joint credit card statements.
The important thing is to prove that you live together and have joint financial assets and responsibilities.
#Prior heterosexual marriages
Prior heterosexual marriage of one of the partners is a common concern for same-sex couples in the green card process.
If you’ve been married in the past, be honest because government agency will know, and you shouldn’t try to hide it.
On your I-130 petition, you will have to list any previous heterosexual marriage or same sex marriage and provide relevant marriage certificate, divorce or death certificates proving that it was legally terminated.
Also, make sure you mention this at your green card interview.
But, if you or your same-sex spouse previously filed a green card application based on a prior heterosexual marriage, this issue can be more tricky. In this case, you could face accusations that the previous marriage was fraudulent and solely intended for immigration purposes or to obtain a green card.
#How to Handle Issues of Having Prior Heterosexual Marriages?
If you became a U.S. citizen or a lawful permanent resident based on a prior marriage and now want to sponsor your current spouse for a green card, your current marriage will also be intensely scrutinized.
If some of these scenarios apply to you or you have prior marriages, you must be prepared to explain why you were previously in a heterosexual marriage honestly.
Separate from proving an authentic marriage, same-sex couples may face special challenges in establishing the legal validity of their marriage.
Does it Matter Where Same Sex Marriage Took Place?
Your marriage must be valid where it was performed.
Immigration benefits are governed by U.S. federal law and are usually aligned with marital status, so you do not need to get married in a state that recognizes same-sex marriages.
But, if you want to get married abroad, you must do it in a country that recognizes same-sex marriages. If your spouse lives in a country that doesn’t recognize same-sex marriages, you might consider applying for a fiancé(e) visa.
How An Immigration Lawyer Can Help Me Obtain the Immigrant visa?
If you want to apply for same sex marriage green card, having an experienced immigration attorney to help you understand the U.S. immigration law, prepare different kind of immigration forms and supporting documents, or deal with different complex scenarios that can arise in same sex relationship cases can be a huge advantage.
Any mistake in your marriage green card application and breach of immigration law can affect your petition and prevent you from getting a immigrant visa.
Herman Legal Group has over 26 years of immigration experience with one of the most experienced attorneys in immigration laws who offer quality immigration services.
You can schedule a consultation with an immigration attorney via Skype, Zoom, WhatsApp, or Facetime, or you can decide to visit our law firm to discuss your case. You can contact us via +1-216-696-6170. If you prefer to speak with the immigration lawyer Richard Herman, you can also book your consultation online.