On June 26, 2013, the Supreme Court struck down the Defense of Marriage Act (DOMA), a law from 1996 that severely discriminated against LGBT couples in the United States, especially those who were married or wanted to get married. The Supreme Court’s Windsor decision was a huge victory for civil rights and LGBT individuals in the United States. With this decision, the ban on receipt of federal benefits (including immigration benefits) for gay couples ended.
““Kate was fantastic guiding me through the Green Card process. She was prompt, efficient and always responsive. She was always available by phone or email if I needed extra guidance. I really liked her approach. She’s relatable, reliable and really nice! And in the end I got the card with little hassle.””
Since DOMA’s defeat, we have successfully worked with hundreds of gay and lesbian couples to petition for their loved one’s green card through marriage. Our same-sex couple clients have included older couples who had waited decades for equal rights under immigration law and foreign nationals who had been out of status for many years.
From our work with gay and lesbian couples, we have compiled below a list of commonly-asked questions and answers to issues relating to applying for a green card through same-sex marriage.
Q: Does it matter what state I live in?
A: No -- you can live in any state. In June 2015, the Supreme Court issued a decision (Obergefell v. Hughes) requiring all 50 states to perform and to recognize same-sex marriages.
If you are looking for legal representation, we are based in the Northeast of the United States, but we are authorized to appear at immigration offices and immigration courts in all 50 states, and have represented clients at immigration offices throughout the country and helped clients navigate consulates throughout the world. We are adept at working with modern technology to facilitate representation of clients regardless of their location. This became especially useful during the COVID-19 pandemic, but even after pandemic restrictions eased, we have continued to use Zoom for most client meetings and we also collaborate with documents via document sharing technology.
Nonetheless, we strive to attend all USCIS client interviews in person, regardless of the location of the case.
Q: Does a domestic partnership or civil union qualify me for immigration benefits?
A: No -- you must be married. While the Windsor decision allows gay couples to apply for green cards, gay couples are still subject to the eligibility requirements for a green card. If you are not married, the first thing you must do to become eligible for a green card is to get married. This step is necessary for both green card beneficiaries of U.S. citizens and lawful permanent residents alike.
If, however, your partner is in another country and you are not yet married, you may want to consider the fiancé(e) visa process (explained in the next section).
Q: My partner currently lives in another country, but we are not yet married. How can I bring him or her to the United States?
A: The two most common options for a U.S. citizen to bring a foreign national partner to the United States is through: (1) a fiancé(e) visa; or (2) through a foreign marriage, followed by consular processing. For the fiancé(e) visa, following a successful petition and visa application, your partner can join you in the United States, marry you within 90 days, and then apply for permanent resident status. Click here to learn more about the fiancé(e) visa process. If you are able to get married first, the consular processing option can have certain advantages over the fiancé(e) visa process, although it can sometimes take longer for your spouse to join you in the United States.
Q: What if I am a permanent resident of the United States? Can I still petition for a green card for my spouse?
A: Yes, but it is a somewhat different process and you may have a longer wait. If you are not a U.S. citizen, but instead are a lawful permanent resident (green card holder), you may still apply for permanent resident status for your spouse. There are a couple of differences, however. First, the petition might be subject to the “preference” system, whereby certain green card petitions have to endure a sometimes lengthy waiting period before their petitions are processed. Second, there are also more potential disqualifying factors for spouses of permanent residents, such as having been out-of-status for a certain amount of time or having worked without authorization in the United States. It is very important to consult an immigration attorney to confirm your eligibility as the spouse of a lawful permanent resident.
The fiancé(e) visa process is not available for fiancé(e)s of lawful permanent residents.
Q: I am a U.S. citizen, and my foreign national partner entered with a visa but is currently out of status. Will this affect our petition for a green card?
A: It depends, and how your partner entered the United States makes a big difference.
If your partner entered the U.S. by being inspected by an immigration officer -- for instance, on a tourist or student visa -- but has overstayed his or her visa, fallen out of status and/or accrued unlawful presence, he or she may still eligible for a green card as the spouse of a U.S. citizen, but it is very important to consult with an attorney before moving forward.
Unfortunately, this exception usually does not apply to someone out of status who wants to marry a permanent resident of the United States. In those cases, we usually try to determine if the permanent resident spouse is eligible to become a U.S. citizen first through the naturalization process.
If the foreign national entered the U.S. without being inspected (e.g. crossed over the Mexican or Canadian border) or by committing misrepresentation (e.g. by impersonating someone else), it may be much more difficult for him or her to obtain a green card, but there can be options, such as waivers. As of July 2024, the Biden administration is attempting to put into place a new policy allowing non-citizens who entered the country without inspection to “parole in place” — but that program has not begun yet, and it is likely that anti-immigrant groups will try to block this initiative with litigation. It is extremely important to consult an attorney before filing any paperwork if your partner entered the U.S. without being inspected by an immigration officer.
Q. What if I have a criminal history?
A. If you or your partner has a criminal history, it is essential to speak to an attorney before moving forward with an immigration petition. A criminal record could negatively affect your petition, or result in your petition being denied, depending on the crime/crimes, especially if the crime was committed by the foreign national spouse. Depending on the nature of the crime and when the crime occurred, you may be eligible for a waiver, but it is very important to consult a lawyer before filing any paperwork with USCIS in these circumstances.
Q. How long will it take for my spouse to receive a green card?
A. It depends on many factors, such as location, complexity of your case, and what type of application you are pursuing. For instance, some adjustment of status cases are now approved without an interview. Some field offices have less of a backlog of cases than others. Some types of applications (for instance, the I-601A waiver) have a processing time of several years. When you work with one of our attorneys, we will try to give you a a reasonable expectation of how long your case will take.
Q. What happens after I receive my marriage-based green card?
If you were married for less than two years at the time you become a lawful permanent resident, you will receive a 2-year “conditional” green card. You will need to file an additional petition in order to remove the “conditional” status; this form is due in the 90 day period before the two year anniversary of the conditional grant of status. After that petition is approved, your spouse will have unconditional permanent resident status in the United States.
Note that if you were married for more than two years at the time you receive your green card you do not need to go through this “conditional” phase and will receive a 10-year green card when you become a lawful permanent resident.
After a certain amount of time of being a lawful permanent resident, you can also consider applying for naturalization to become a U.S. citizen. The amount of time depends on if you have lived together in marital union with your citizen spouse since becoming a permanent resident. In that case, you only need to wait three years after becoming a green card holder to apply for naturalization. But if you and your spouse no longer live together (e.g. separation or divorce), then you need to wait five years after becoming a green card holder to apply for naturalization.
Q. What sort of documentation should we submit with our petition?
A. It can vary based on your relationship, but all couples should submit documentation showing that their marriage is “bona fide” -- that is, not entered into solely for the purpose of obtaining a green card. Relevant documentation includes documentation that demonstrates your cohabitation (e.g. deed or lease), any co-mingling of assets (e.g. joint bank accounts, joint brokerage accounts), any joint ownership of property (e.g. house, car), and any other relevant evidence of your relationship and marital union. This evidence can also include notarized letters filed by people with knowledge of your marriage. The person who is petitioning for his or her same sex partner (the U.S. citizen) should have proof of his or her U.S. citizenship ready to submit. Proof of citizenship could be shown through a birth certificate or a passport, for example.
We work with our clients to come up with a comprehensive list of documentation that is appropriate for their particular circumstances. To discuss your immigration matter with one of our attorneys, please click below.
Q. How have immigration officers been treating same-sex couples at the interviews?
A. With isolated exceptions, green card interviews for same-sex couples have been conducted by USCIS officers in a professional and respectful manner, and without many discernable differences from interviews for opposite-sex couples. For more information about the interview process, including issues unique to LGBT couples, please read our recent article on the subject.