Special Considerations for Same-Sex Couples Seeking Marriage-Based Green Cards

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Since DOMA’s defeat, we have had the opportunity to file numerous immigration petitions on behalf of same-sex couples, with great success.  From our work with gay and lesbian couples, from preparing their immigration petitions and accompanying evidence to representing them at their interviews at USCIS, we have identified several issues that set our same-sex immigration clients apart from our opposite-sex immigration clients. 

This article explains several of these issues, and includes some pointers on what you can do in your application and in the interview to help ensure that USCIS grants your application.  Please keep in mind, however, that everyone’s circumstances are different, and it is highly advisable to have an attorney guiding you through the process and answering questions about your specific situation.  Also, for an article about frequently-asked questions by LGBT couples on obtaining a green card through same-sex marriage, please see Kate Lenahan’s frequently-updated FAQ.  

1.  No Relationship With Your In-Laws

While a married person having a difficult relationship with his or her in-laws is certainly nothing new, one issue that is unique to same-sex couples is that one or both of the spouses has sometimes not met (or is not known to) each other’s respective families.  This can occur perhaps because of conservative families that are not accepting of gay marriage, individuals who are not out to their families, or strained familial relationships. 

Does this mean that you cannot prove to USCIS that you are in a valid relationship?  Absolutely not.  But there are a few things that you can do to make the officer comfortable with the legitimacy of your relationship:

  1. A.   Be Honest About Relationship With Family

For many immigration officers who have not had much exposure to gay and lesbian couples, it is essential to explain why you do not have a relationship with your spouse’s family.  Our advice in this situation is: tell the truth and explain to the officer why it is that you haven’t been able to meet each others’ families.  

Once an officer learns about the difficulty of coming out to a conservative family or parents not being accepting of gay marriage, he or she is generally understanding about the issue.  But don’t assume that the officer has any insight into the dynamics that families can have with a gay and lesbian family member.  Instead, treat questions about your spouse’s family as an opportunity to politely educate the officer about the issue.  And if questioning on this area becomes harassing or inappropriate, this is when it helps to have your attorney in the room with you!

B.    Know Names of Your Spouse’s Family Members

Although it is easy to explain why you do not have a relationship with your spouse’s family, it can be embarrassing if you are asked about the names of your spouse’s parents or siblings and do not know.  Before your interview, it is important to at least go over the names of each other’s family members together, even if you have not met them.  This is a common interview question, and you can even use it to transition to an explanation of why you have not met each other’s families.

  1. C.   Get Letters of Support from Friends

Even if you do not hold yourselves out as a couple to your entire family, it is important to USCIS that you at least hold yourselves out as a couple to someone.  That could be a friend, a co-worker, a neighbor, or a family member whom you are close to, even if not an immediate relative:  anyone who knows you and your spouse as a couple and would be willing to write a letter on your behalf.  We work with our clients to identify appropriate people in their lives to write letters, and to help them draft a letter that is appropriate to submit to USCIS. 

If you have additional questions about this issue or would like to schedule a consultation with us, please call us at (212) 203-0557 (NY) or (215) 558-7600 (PA), or e-mail us.

2.    Prior Opposite-Sex Marriage

We have filed successful petitions on behalf of several same-sex couples who had a prior marriage or relationship with someone of the opposite sex.  The importance of your prior marriage depends on various factors, such as whether the prior marriage had any immigration implications and how long ago the prior marriage took place.  In your application, you will need to disclose prior marriages, as well as submit paperwork showing the termination of your prior marriage, such as a divorce judgment.  Please keep in mind that prior marriages can be a very sensitive topic for USCIS officers, and it can be of great benefit to have an attorney accompany you to an interview if you have had a prior marriage.  

A.    Prior Marriages Without Immigration Filings

If you were previously married to someone of the opposite sex, but the marriage did not result in any immigration filings (for example, if you were both U.S. citizens), then the only potential issue will be whether an officer will suspect if you are truly gay due to your prior participation in a heterosexual marriage. 

If your prior marriage was recent, it is possible that it may draw the attention of the USCIS officer.  However, the sensitivity training the USCIS officers receive should help demonstrate to them that people are often bisexual. 

For prior marriages that took place many years ago, it is an unfortunate fact that many gay people married opposite sex people in hopes that it would cause them to “change” or at least satisfy the external pressure they constantly received to get married and settle down.  If a USCIS officer inquires about your prior opposite sex marriage, a simple explanation should suffice. If the officer remains skeptical and appears disinclined to grant your petition, a USCIS supervisor can be called during the interview. 

B.    Prior Marriage-Based Petition By U.S.C. or LPR

If you are a U.S. citizen who sponsored your prior spouse for a green card, the green card petition will ask you for your prior spouse’s name and when the marriage and divorce took place, and an officer may inquire about this as well.  Whether or not you will be asked further details about your prior marriage will vary depending on which officer is assigned to your case.  The officer may be especially interested if your prior marriage took place in close proximity to your current marriage.  The reason for this is that a new marriage in close proximity to a former marriage can raise concerns of marriage fraud.  In such a case, we suggest that you gather as much evidence as you can that your prior marriage was real to bring to the interview:  not to present up front at the beginning of the interview, but just in case the officer is hung up on your prior marriage.

If you are a U.S. citizen or a lawful permanent resident and you obtained your green card through a prior marriage, you will need to be careful about filing for a green card for your new spouse.  Generally, if a lawful permanent resident sponsors his or her new spouse within 5 years of having received his or her green card through a prior marriage, the new marriage will be viewed with increased scrutiny.  If you are in that situation, depending on the individual circumstances of your case, it may make sense to apply for naturalization and become a U.S. citizen before you apply for your spouse’s green card.  Because this can be a difficult issue, it is essential to have an attorney handle your case.

C.    Prior Unsuccessful Green Card Petition

If you are a foreign national and you were in an opposite sex marriage to a U.S. citizen or lawful permanent resident who sponsored you for a green card, but were not successful in obtaining the green card, you must proceed very carefully with any future USCIS filings, and legal representation is extremely important

The reason why you did not obtain the green card in your prior application will be very important.  For example, if you were in a valid marriage (meaning you did not marry solely to obtain a green card) but did not provide enough evidence to immigration officials or you did not perform well in the interview, your former spouse may have withdrawn his or her petition for your green card in order to avoid an official finding of marriage fraud.  Your former spouse may have withdrawn his or her petition for other reasons as well such as the relationship falling apart. 

In these cases, if immigration officials suspected marriage fraud in your prior marriage, it can make it more difficult to easily obtain your green card through your current marriage.  For example, having been called back for a second interview with immigration officials is an indication that immigration officials suspected your marriage was fraudulent.  It is still possible to obtain your green card, however, if you can convince the USCIS officer handling your case that your prior marriage was, in fact, real.  The best way to usually accomplish this is by providing evidence that you and your former spouse lived together, shared your finances, etc.  If you are still in touch with your former spouse, you could ask him or her to write a notarized statement that your prior marriage was valid.  It is crucial to consult in an attorney in this situation so that you can receive an assessment of whether it is too much of a risk to file for a green card given your prior marriage. 

If you married an opposite sex person for the sole purpose of obtaining a green card and filed an unsuccessful petition for a green card, then the marriage fraud issues implicated by your prior case will make it difficult or impossible to receive a green card through your current marriage.  We understand that many LGBT foreign nationals entered into opposite sex marriages due to the desperation they felt about having no way to obtain a green card through a real relationship.  However, marriage fraud makes one ineligible to receive any immigration benefit in the future.  Even if immigration officials never made any official finding of fraud, it is extremely risky to file for a new green card given the past fraudulent marriage which could come to light during the interview and result in an official finding of fraud.  And if an official marriage fraud finding was made by immigration officials in connection with your prior marriage, it is even more unlikely that you will be able to successfully apply for a green card through your current spouse.  A finding of marriage fraud bars the future receipt of any type of immigration benefit. 

In short, if you have previously filed an unsuccessful application based on a prior marriage, you should not file anything with USCIS until you have consulted with an immigration attorney who has thoroughly reviewed your file. 

If you have additional questions about a prior marriage issue or would like to schedule a consultation with us, please call us at (212) 203-0557 (NY) or (215) 558-7600 (PA), or e-mail us.

    3.    Bias Toward LGBT Couples?

We have been fortunate enough to attend many immigration interviews with same-sex couples at several immigration offices throughout the United States. We are pleased to report that, in general, immigration officers have conducted themselves in a respectful and professional manner, and have decided petitions filed on behalf of same-sex couples with the same standards and procedures that are employed for opposite-sex couples.  Some officers have been genuinely excited to interview a same-sex couple, since it is a very new development in immigration law.  One officer interviewing our clients, in fact, proudly reported that it was her first interview of a gay couple. 

Also, according to one officer, USCIS officers in some field offices will be taking “sensitivity training” workshops to prepare for issues specific to LGBT couples.  Officers have occasionally displayed some insensitivity, especially when it pertains to prior opposite-sex relationships, but this thankfully has been the exception, not the norm. 

We have also heard from other immigration law attorneys that, with only a few exceptions, same-sex couples have been treated with respect and professionalism at USCIS offices throughout the country. 

If you have concerns about an upcoming interview, we can be retained to represent you at the interview and/or conduct a mock interview session with you and your spouse, even if you completed the application yourself or hired someone else to do it.  To speak to one of our attorneys about helping you with an upcoming interview, or if you have any additional questions about interview-related issues, please call us at (212) 203-0557 (NY) or (215) 558-7600 (PA), or e-mail us.

4.    Difficulties Obtaining Documentation

One unfortunate reality that faces many LGBT individuals is that while a majority of Americans now support marriage equality, there are still many people in our society who object to gay marriage.  When one of these individuals is an employer or a landlord, it can be difficult to obtain documentation about your relationship.  Here are some common items that our clients have sometimes had difficulty obtaining:

Common Lease:  Sometimes our LGBT clients have been concerned that he or she cannot add his or her spouse to the lease because of landlord bias, or, especially in New York, the concern about losing a rent stabilized apartment (although New York landlords are legally obligated to add a same-sex spouse to a rent stabilized lease).  In such instances, we work with clients to brainstorm alternative types of documentation that would prove that our clients share their residence.  

Employer-Controlled Documents:  A number of our gay and lesbian clients are anxious about disclosing to their employers that they are in a same-sex marriage.  In such cases, they can be concerned about asking for items like employment verification, or doing something as simple as designating their spouse as the beneficiary of their retirement plan or adding their spouse to their health insurance.  There are, however, alternative documents that can be provided, and we work with our clients to compile suitable documents to use in lieu of employer-produced documents. 

Joint Tax Returns:  Although we encourage all of our married clients to file their taxes jointly for evidentiary reasons, there are some situations where our clients are not comfortable doing so.  First, an important legal note:  same-sex married couples in all states may now file their federal tax returns jointly with the IRS

If a joint tax return is not a possibility, or if you recently got married, this piece of evidence may not be possible to obtain.  In such cases, we help our clients come up with other evidence that they make joint financial decisions in some way, whether it is through a joint back account or even a record of payments made by one spouse to another for utility bills and similar items.  . 

If you have additional questions or concerns about putting together documents to prove that your marriage is a real marriage and would like to speak to an attorney, please call us at (212) 203-0557 (NY) or (215) 558-7600 (PA), or e-mail us.

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Although we hope that this article was useful, please keep in mind that everyone’s legal circumstances are different, and that the forms that must be filed with the immigration authorities are complex, so this is by no means a complete list of the potential issues that can come up.  Some other frequently asked questions and answers are available in Kate Lenahan’s frequently-updated post on green cards through same-sex marriage

Again, if you have a specific question that is not answered below, or if you would like to consult with us about your specific case, please call us at (212) 203-0557 (NY) or (215) 558-7600 (PA), or e-mail us.

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Since DOMA was struck down, Kate Lenahan has filed successful immigration petitions, including petitions for fiancé(e) visa, on behalf of numerous same-sex couples who waited for too long for equality in United States immigration law.  Prior to DOMA’s defeat, Kate helped many same-sex bi-national couples prepare for the decision, while at the same time working with such couples to find alternate ways of staying in the country, such as asylum or non-immigrant visas. 

Kate began to focus on LGBT immigration issues when she was a Legal Fellow at Immigration Equality, a non-profit organization that is dedicated to providing legal services to LGBT immigrants.  E-mail or call Kate to set up a free phone consultation about your immigration issue.     

Copyright 2013-15 Brophy & Lenahan P.C. 

All rights reserved.

    The article above is intended to provide general information.  It is not legal advice and should not be used as legal advice.  For legal advice on your particular issues, you should consult with an immigration attorney who can familiarize himself or herself with your specific issues.

by Alex Brophy and Kate Lenahan, Esqs.

(212) 203-0557 / (215) 558-7600