How to Get a Green Card for Married LGBTQ & Same Sex Couples
On June 26, 2013, the U.S. Supreme Court issued two landmark cases which had a direct impact on gay & same-sex couples’ immigration rights. Hollingsworth v. Perry, which arose out of California’s Prop 8 measure, addressed the issue of whether the U.S. Constitution bars California from limiting marriage to unions of one man and one woman. In United States v. Windsor, the Supreme Court heard oral arguments regarding a challenge of the federal government’s denial of benefits and tax advantages to legally married same-sex couples under the Defense of Marriage Act (DOMA). In Obergefell v. Hodges, the Supreme Court decided whether all U.S. states were required to permit same sex marriage.
The Supreme Court ruled as follows:
Defense of Marriage Act (DOMA)
The Defense of Marriage Act is a United States federal law that was enacted in 1996. DOMA restricted the scope of federal marriage benefits and also restricted inter-state marriage recognition only to opposite-sex marriages in the United States. On June 26, 2013, the Supreme Court struck down DOMA and ruled that it was unconstitutional – entitling married same sex couples to the same federal benefits as opposite-sex married couples.
In 2008, California passed a ballot which banned same sex marriage. In limiting marriage only to opposite-sex couples, Prop 8 overturned the California Supreme Court’s previous decision that same sex couples have a constitutional right to marry. The Ninth Circuit Court of Appeals struck down the ruling and the U.S. Supreme Court dismissed the appeal based on a lack of standing. The judgment of the Ninth Circuit was vacated and the case remanded with instructions to dismiss the appeal for lack of jurisdiction. On June 28, 2013, the Ninth Circuit Court of Appeals lifted the previous ban on gay marriage.
Same Sex Marriage Now Legal in All U.S. States
As of June 26, 2015, the Supreme Court of the United States held that all states must allow same-sex marriage and that a failure to do so would be unconstitutional under the 14th Amendment.
Can married same sex couples now sponsor his or her spouse for U.S. permanent residency (green card)?
Immigration is a federal law and fell within the scope of DOMA. The USCIS and DHS have confirmed that U.S. citizens spouses in a same sex marriage can sponsor his or her foreign spouse for permanent residency under the same guidelines as traditional opposite-marriage based cases. In fact, Maximilian Law Inc. has already obtained several green card approvals based on same sex marriages.
What should you do?
Get married. If you are in a same sex relationship but you are not married to your partner yet, now is the time to do so. This is because the right to sponsor a spouse for a green card does not take effect until you are legally married in a jurisdiction that permits same sex marriages.
U.S. states permitting same sex marriage: As of June 26, 2015, the Supreme Court of the United States held that all states must allow same-sex marriage and that a failure to do so would be unconstitutional under the 14th Amendment.
Document your relationship. Start gathering documents and evidence that would demonstrate that your relationship to date has been genuine and bona fide. These include joint leases, bank accounts and vacation photos, to name a few.
Contact Maximilian Law Inc. Be sure to contact Maximilian Law Inc. to discuss your strategy for filing a green card petition for a same sex spouse. We have extensive experience with same sex marriage green card cases and all of our cases have been approved so far. We can provide a complimentary initial telephone consultation with you and your partner to evaluate the merits and viability of filing a green card application on your behalf. Immigration attorney Cedric M. Shen also wrote an guide for bi-national couples sponsoring a spouse for a green card for Curve Magazine outlining the implications of same sex marriage on green card eligibility after DOMA.
K-1 Fiancé Visa for LGBTQ and same-sex couples
As with opposite-sex couples, engaged same sex couples may also be eligible for the K-1 fiancé visa. If you are currently engaged to a U.S. citizen, or if you have a fiancé who lives outside of the U.S., the foreign fiancé can get a visa to come to the United States to marry and apply for a green card.
Other Visa Options for LGBTQ and same-sex couples
If you are not ready to get married but you would like to live in the United States, there are other visa options for foreign LGBTQ citizens. These include: H-1B visas, TN visas, L-1 visas, O-1 visas, or E-2 visas.
Our Same Sex & LGBTQ Marriage Green Card Legal Services
Our legal services include: determining whether both parties meet the criteria required to proceed with an application, including the legality of the marriage in the jurisdiction where it occurred; preparing the formal petition and supporting evidence; preparing the consular processing or adjustment of status application and supporting documents; and preparing both clients for the final green card interview.