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 is 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 many 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.  If you are already familiar with the basics, and would like to read more specifics about immigration considerations unique to same-sex couples, please read our recent article summarizing our experiences to date with LGBT immigration petitions. 

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.  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.

Q:  This is a new legal development - do I have to wait for more laws to be passed to petition for my spouse’s green card? 

A:  No - if one of the spouses is a U.S. citizen, you can apply now.  For most married LGBT bi-national couples, the fact that DOMA has been struck down means that an LGBT U.S. citizen can immediately petition for a green card for his or her spouse.  The Supreme Court’s decision striking down DOMA was the final decision on the matter, and no further laws need to be passed in order to begin applying for green cards.  Therefore, if you are already married and have your documentation ready to file, you may do so immediately! 

Q:    What if I live in a state that does not recognize marriage equality?  Can I still file a marriage-based green card petition?

A:    As of June 26, 2015, all 50 states and territories recognize marriage equality.  Fortunately, it is no longer relevant which state performed the marriage.   

Q.    What if we are in a domestic partnership or civil union?  Do we need to get married to receive immigration benefits?

A.    Yes, you must be married.  While the DOMA 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.  Can we petition for a fiancee visa?

A.    Yes.  If your partner does not currently live in the United States, you may bring your partner over to the United States on a fiancee visa, marry him or her within 90 days, and then apply for permanent resident status.  The fiancee visa process is somewhat more involved, but is another way of accomplishing your goal of having your loved one join you in the United States.  To read more about same-sex fiancee visas, please read our recent article here or contact us by phone (212-203-0557 or 215-558-7600) or e-mail. 

Q.    I am a U.S. citizen and my husband/wife lives in another country - can I still file a green card petition for him/her?

A.    Yes.  You may petition for your spouse while he or she remains abroad, and then the application is processed at the U.S. consultate or embassy in the country where your spouse lives.

Q.    What if I am a permanent resident of the United States?  Can I still petition for a green card for my spouse?

A.    Possibly, 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.  Please contact us for additional information. 

Q.    My partner 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. 

1. -    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 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 does not apply to someone out of status who wants to marry a permanent resident of the United States -- only marriage to a U.S. citizen will allow the foreign national to immediately apply for a green card.
   

1. -    If your partner 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 will be much more difficult for him or her to obtain a green card, but not impossible.  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.
   

17. Q.   What if I have a criminal history?
    

A.    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 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 five months, depending on which office is processing the case.  But processes involving a U.S. consultate -- 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.   For more information about the evidence required and for answers to more questions about obtaining a green card through marriage, please see our recent article discussing issues pertaining to green card applications through marriage.

Q.    How have immigration officers been treating same-sex couples at the interviews? 

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.  To learn more, please read our recent article summarizing our experiences to date with LGBT immigration petitions. 

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The list of questions above is by no means complete, and everyone’s circumstances have the potential to raise different legal issues.  If you would like to speak with us about your particular case, please call (NY: 212-203-0557 or PA: 215-558-7600) or e-mail us today.

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Since DOMA was struck down, Kate Lenahan and Alex Brophy have filed successful immigration petitions 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 and Alex 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.