Same-Sex Marriage and Immigration

On Friday, June 26, 2015, the U.S. Supreme Court ruled in the case Obergefell v. Hodges that same-sex marriage is now legal nationwide.  The below article was written prior to the issuance of this decision and will be updated accordingly to reflect the current state of the law. 

Like many areas of law, immigration is dynamic.  U.S. Citizenship and Immigration Services (USCIS) monitors relevant case law and makes changes to immigration policy accordingly.  Same-sex couples have made significant legal strides in the past decade, and these victories are reflected in current USCIS policy.  It is crucial that anyone with immigration issues who is in a same-sex relationship finds an attorney who understands how LGBT (lesbian, gay, bisexual, and transgender) immigrants and their partners are affected by new regulations and procedures.

A Brief History of Immigration Law for LGBT People

LGBT foreign nationals were considered excludable from the U.S. on medical grounds until 1991. This was due to the historical classification of homosexuality as a mental illness.  The psychological and medical fields evolved and changed their stance, and public acceptance of homosexuality as a normal human variation has followed.  From the mid-1990s, individual states began allowing same-sex marriage or alternatives like domestic partnerships or civil unions.

Until recently, same-sex couples were unable to utilize their marital relationship as the basis for applying for immigration benefits, even if they were married abroad or in a state where the marriage was legal.  Under the 1996 Defense of Marriage Act (DOMA), the federal government was prohibited from recognizing same-sex marriages for federal programs like Social Security benefits or income taxes. This prevented USCIS from considering a same-sex spouse as an immediate family member for immigration purposes.  Similarly, any immigration benefit that would normally be derivatively available to the spouse or children of a nonimmigrant or an immigrant visa applicant was withheld from same-sex couples.  Immigration benefits were also denied for the step-children of same-sex partners.

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Green Card Through Marriage

Obtaining Permanent U.S. Residence Through Marriage

When a United States Citizen (USC) or Lawful Permanent Resident (LPR) marries a resident of another country, the foreign spouse can typically receive a Green Card, granting him or her permanent U.S. residence. In order for the foreign spouse to receive LPR status, the couple must follow the proper procedures, and the foreign spouse must meet certain qualifications. Obtaining a visa and LPR status through marriage has great advantages, one being the absence of statutory limitations (or caps) on the number of these visas that will be issued to immediate relatives each year. Immediate relatives are the spouses, parents and unmarried children under the age of 21 of U.S. citizens. A spouse of a LPR and any unmarried children under the age of 21 are subject to the annual visa cap and may qualify for a Green Card once a visa becomes available to them in the family-based second preference group.

Valid Marriages for Obtaining LPR Status

A couple may marry within the United States or abroad, so long as the marriage is legal and valid where it occurred, and is a type of marriage that U.S. Citizenship and Immigration Services (USCIS) will recognize.   Ultimately, the couple will need to demonstrate theirs is a bona fide marriage; not one entered into for the purpose of obtaining immigration benefits. The application process varies depending on whether the foreign spouse is already in the U.S. or needs a visa in order to travel here. In either scenario the USC or LPR must begin the process by filing an I-130 Petition for Alien Relative with USCIS.

Generally approval of the I-130 requires the petitioning USC or LPR spouse to provide by a “preponderance of the evidence” indications of a valid marriage, including (but not limited to) proof that:

  • The petitioner is a U.S. citizen or qualifying LPR;
  • Any previous marriages of petitioner and beneficiary (foreign spouse) have been legally dissolved; AND
  • Any and all evidence tending to demonstrate the marriage is bona fide and valid, including items such as: the marriage certificate, leases or bank accounts held jointly by the couple, affidavits of friends and family members attesting to the validity of the marriage, photos and evidence of a typical marital relationship, etc.

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