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.
Since DOMA’s defeat, we have successfully worked with over one hundred 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, although we primarily represent clients in the Northeast Corridor, 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.
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.
Q: My partner 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. If you are able to get married first, the consular processing option can have certain advantages over the fiancé(e) visa process, although it generally takes 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 will have a longer wait. If you are not a U.S. citizen, but instead are a lawful permanent resident, you may still apply for permanent resident status for your spouse, but the petition will be subject to the “preference” system, whereby certain green card petitions have to endure a sometimes lengthy waiting period before their petitions are processed. 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.
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 is most likely still eligible for a green card as the spouse of a U.S. citizen. Unfortunately, this exception usually does not apply to someone out of status who wants to marry a permanent resident of the United States.
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. 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. Speak to an attorney first. This 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, but if one of the spouses is a U.S. citizen, approximately three months to a year. After you file for a green card, the government must process your form before awarding your spouse a green card. In addition, you will be called for an interview in which an immigration official will ask you questions to verify that you are in a bona fide marriage (i.e. a real marriage, not just a marriage to receive a green card).
If you are in the United States and filing for permanent residence as the spouse of a United States citizen, since DOMA has been struck down, such applications have generally been processed in approximately three to nine months, depending on which office is processing the case. But processes involving a U.S. consulate -- such as fiancee visas or petitions for spouses who live outside the U.S. -- generally take longer, and a typical wait can range from six months to a year.
Following an interview at a USCIS office in the United States, many couples will have their applications approved immediately, or within a couple of days. Unless there is a complication in your case or USCIS needs more evidence, you should receive your green card two to three weeks after your interview.
If you were married for less than two years at the time your petition was filed, and your petition is granted, you will receive a conditional green card. You will need to file an additional form in order to remove your spouse’s “conditional” status; this form is due within 90 days of the two year anniversary of the conditional grant of status. After that form is approved, your spouse will have 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.
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.