Same-Sex Couples, Reunite With Your Loved Ones and Exercise Your New Right to
Become an American Citizen
When the US Supreme Court overturned the Defense of Marriage Act (DOMA) in the case United States v. Windsor, 133 S.Ct. 2675 (2013), gays, lesbians, bisexuals, and transgender U.S. citizens and legal permanent residents (LPRs) gained their right to petition for green card or citizenship for their same-sex foreign fiancé and spouses. Green cards are already being issued to same-sex couples across the country, so you can begin the application process right away. Once you get married in a state that has legalized same-sex marriage, you are free to move to another state without legalized same-sex marriage and still apply for legal status for your fiancé and his or her family. Often, even if your fiancé or spouse is out of legal status and currently illegally residing in the United States, an experienced same-sex immigration attorney can still help you sponsor them for a green card.
The new federal immigration benefits also confer the right to green card to the foreign spouse’s children, parents, and siblings as well as the siblings’ spouses and minor children in the United States.
Also, foreign LGBT spouses of U.S. citizens or LPRs who are victims of domestic violence are now also eligible to break free of the cycle of abuse by filing a self-petition to obtain their green card independent of the abuser under the provisions of Violence Against Women Act (male victims are also absolutely eligible). This means LGBT survivors of domestic abuse and their children, so long as they were married to a U.S. citizen or LPR, can leave the abuser and still qualify for permanent residency under VAWA even if they were without legal status during the marriage.
It is a new day in immigration equality.
Contact us for a free-consultation with an experienced immigration attorney focused on LGBT green card and family-immigration issues today. See what our prior clients have to say regarding our services.
What does this mean if my fiancé lives abroad?
This means that you can sponsor your same-sex fiancé through the K-1 fiancé visa process if he or she is currently living abroad. You can then get married in a state that has legalized same-sex marriage within 90 days of your fiancé’s arrival into the United States. After you are legally married, you can sponsor your fiancé for a green card. You can also marry your fiancé in a country that recognizes same-sex marriage and apply for a spousal green card directly through consular processing. If your same-sex fiancé has children under the age of 18, they can also qualify for a green card.
The K-1 visa and subsequent I-130 green card applications can be complicated, as you must show the US government that the marriage was not a sham by providing sufficient evidence that you have a “bona fide” relationship and that you have the good faith intent to marry within 90 days of your fiancé’s arrival into the United States. You will also need to show documentation that you have the ability to financially support your spouse.
What does this mean if my fiancé is living illegally in the United States?
Typically, once the U.S. Citizen or lawful permanent resident marries the same-sex foreign national fiancé in a state that has legalized same-sex marriage, the foreign spouse is eligible to receive their green card from within the United States. They can adjust their status to permanent resident so long as they entered the United States through a valid port of entry following inspection by a U.S. official.
For undocumented individuals who entered the U.S. illegally, or without inspection (“EWI”), receiving a green card is far more complicated if you have been unlawfully present in the country for more than 180 days. If you have stayed in the U.S. without legal status for more than 180 days, it triggers a 3-year bar from re-entering the United States once to exit the country. If you have been unlawfully present in the U.S. for more than one-year, you will be barred for 10-years. If the unlawful presence 3-year or 10-year bar is an issue for you, the foreign spouse must be able to qualify for a “waiver of inadmissibility”, or I-601 waiver, in order to stay in the country. Amongst other requirements, the waiver demands proof that the departure of the foreign spouse will create “extreme hardship” to the U.S. citizen spouse if he or she was barred from the United States for 3 or 10 years. We can assist by giving you the information you need and the legal know-how to navigate towards securing a green card for same-sex foreign spouses and their families in complex situations.
What does the new immigration benefit mean for my foreign fiancé or spouse’s immediate family?
LGBT U.S. citizens and legal permanent residents can now sponsor their spouses’ children for green card. Once the foreign spouse receives legal status, he is also then entitled to sponsor his married children, grandchildren, parents, and siblings to immigrate to the United States and receive legal status.
Don’t wait. The gay, lesbians, bisexual, transgender community has already waited long enough. We fought hard for these rights and it is now time to both create and be reunited with our families. The visa process can take from six-months to over a year, but expediting is possible. By learning about the specifics of your case, we can give you a free consultation about how to apply for a green card or U.S. citizenship for your loved ones and alert you to any potential problems that may cause delays or denials of your application.
- California* (June 28, 2013), Connecticut (Nov. 12, 2008), Iowa (Apr. 24, 2009), Massachusetts (May 17, 2004), New Jersey (Oct. 21, 2013), New Mexico (Dec. 19, 2013), Delaware (July 1, 2013), Hawaii (Dec. 2, 2013), Illinois (law will take effect June 1, 2014), Minnesota (Aug. 1, 2013), New Hampshire (Jan. 1, 2010), New York (July 24, 2011), Rhode Island (Aug. 1, 2013), Vermont (Sep. 1, 2009), Maine (Dec. 29, 2012), Maryland (Jan. 1, 2013), Washington (Dec. 9, 2012), Washington, DC legalized same-sex marriage on Mar. 3, 2010.
Countries that have some or complete legalization of same-sex marriage:
- The Netherlands (2001), Belgium (2003), Spain (2005), Canada (2005), South Africa (2006), Norway (2009), Sweden (2009), Portugal (2010), Iceland (2010), Argentina (2010), Denmark (2012), Brazil (2013), France (2013), Uruguay (2013), New Zealand (2013), United Kingdom [England, Wales, Scotland] (2013), Luxembourg (2014), Finland (2014), Ireland (2015), United States (2015)
Same-sex, non-citizen spouses of gay, lesbian, bisexual, and transgender U.S. citizens or LPRs are now eligible for family-based immigration benefits as follows:
- K-1 Fiancé Visas
- K-3 Marriage Visas
- Form I-130, Petition for Alien Relative for foreign spouse, parents of foreign spouse, siblings of foreign spouse, and children of foreign spouse.
- Adjustment of Status to obtain a Green Card
- Immigrant Visas obtained through consular processing
- Waivers based on a qualifying US citizen or LPR Spouse
- VAWA Domestic Violence Victim Permanent Residence Self-Petition
- Derivative spouse or immigrant visas from refugee or asylum status
Same-sex, non-citizen spouses of gay, lesbian, bisexual, and transgender U.S. citizens or LPRs who are in danger of deportation in removal proceedings can now apply for certain relief to stay in America:
- Cancellation of removal
- Adjustment of Status in proceedings
- I-212(h) waiver
Same-sex spouses of gay, lesbian, bisexual, and transgender foreign nationals who received employment-based visas can now come along to the United States through derivative visa benefits:
- H-4 visa for a spouse who holds an H-1B Specialty Occupation visa
- L-2 visa for a spouse who holds an L-1 Intracompany Transferee visa
- E-2 visa for a spouse who holds an E-2 treaty trader or treaty investor visa
- R-1 visa to accompany the spouse of a religious visa holder
- Green-card eligibility for spouses of EB-5 investors
Oliver-Zhang Law is a proud member of National LGBT Bar Association.