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Same-Sex Marriage Immigration FAQ

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mini statues of liberty 152024853; Same-Sex Marriage Immigration FAQThis Same-Sex Marriage Immigration FAQ addresses same-sex marriage immigration issues following the US Supreme Court’s decision of June 26, 2013, in United States v. Windsor striking down a major provision of the 1996 Defense of Marriage Act (DOMA). Following this decision, same-sex couples can file a marriage-based green card petition on behalf of a non-US spouse on the same basis as opposite-sex couples. Note that the US immigration law is extremely complex, and each person’s case is different from every other. So we can’t cover all contingencies, but this FAQ provides general information about the marriage-based green card process.

Since the Supreme Court has declared DOMA unconstitutional, can I sponsor my spouse for a green card?

Yes, assuming your spouse is eligible for a green card in all other respects, then a same-sex spouse can petition for a green card on the same basis that an opposite-sex spouse has done up until Section 3 of DOMA was declared unconstitutional. Note that a spouse may be ineligible for a US green card on other grounds, however, including various criminal and health ineligibilities (note that HIV status no longer makes a person ineligible for a US green card or visa).

My spouse and I are both in the United States, and we married in a US state where same-sex marriage is recognized. Can I file a green card for my spouse based on marriage?

Yes. As a US citizen or green card holder, you can file a green card petition on behalf of your same-sex spouse on the same basis as someone filing a marriage-based green card petition on behalf of an opposite-sex spouse.

My spouse and I are both in the US, and we married in a jurisdiction outside of the US where same-sex marriage is legal. Can I file a green card for my spouse based on marriage?

Yes. If your marriage took place in a country where same-sex marriage is legal, you can file a marriage-based green card petition on behalf of your spouse on the same basis as someone filing a marriage-based green card petition on behalf of an opposite-sex spouse. Eligibility for US immigration benefits is based on where your marriage took place.

My spouse and I married in a US state where same-sex marriage is legal, but we live in a state that does not recognize same-sex marriage. Can I file a green card petition based on marriage for my spouse?

Yes. Generally, eligibility for US immigration benefits related to marriage is based on the place where the marriage took place, not on the place where you live at the time you file the green card petition. If your marriage was legal in the jurisdiction where you married (whether in or outside the United States), then you can file a marriage-based green card petition for your spouse.

I am a US citizen, and I live in the US. I am legally married, but my spouse lives outside the US. Can I file a green card petition on my spouse’s behalf while s/he is outside the US?

Yes. But since your spouse is outside of the US, instead of being processed at USCIS in the US, the application will be processed at a US Consulate outside the US. This is called “consular processing” or “immigrant visa processing,” and it varies in some respects than applying for a green card while your spouse is in the US, which is known as “adjustment of status.”

I am a US citizen, and my spouse and I have both been living outside of the US. We now want to live in the US. Can I file a marriage-based green card petition for my spouse now?

Yes. But you would first need to establish that you either live in the US, or that you have the intent to live in the US.

I am a US citizen, and my spouse and I have both been living outside of the US. I want to obtain a green card for my spouse should we wish to live in the US some time in the future, but we are not ready to relocate to the US at this time. Can I file a green card petition for my spouse now anyway?

No. You must have the intent to live in the US once your spouse receives an immigrant visa. Also, your spouse must actually live in the US once s/he has a green card.

My partner and I are in a legal Civil Union or Domestic Partnership that provides for the same rights as marriage, but we are not legally married. Can I file a marriage-based green card petition for my partner?

If you are not actually married to your spouse, the answer to this question remains unclear until the US federal government issues further guidance or legislation that specifically allows for those in a legal Civil Union or Domestic Partnership to file for US immigration benefits. If you want to file a marriage-based petition for your spouse in the near future, it may be best to marry in a US state or a country where same-sex marriage is legal prior to filing.

I am in the US pursuant to a nonimmigrant visa that allows me to have the intent to remain in the US indefinitely (for example, H-1B or L-1 status). Can my spouse file a green card petition on my behalf?

Yes, assuming that you are not ineligible for a green card in other respects (that is, if you do not have certain criminal, health or other ineligibilities that prevent you from applying for a green card), your US citizen spouse may apply immediately for a green card on your behalf, and you will be eligible to receive a green card as an immediate relative.

I live in a US state where same-sex marriage is legal, but my partner lives outside the US. We are not legally married. How should I proceed to obtain a green card for my partner?

You have a variety of options. These include:

Option 1: You could file a K-1 fiancé(e) visa petition at a US Consulate in your spouse’s home country, and if approved, bring your spouse to the US. The K-1 visa requires you to marry within 90 days of arrival. Once you are married, submit your green card petition in the US.

Option 2: Marry first in a jurisdiction that permits same-sex marriage (whether in or outside the US), then submit the green card petition through the US Consulate or Embassy in your spouse’s home country.

I am in the US in a valid nonimmigrant visa status that does not allow me to have the intention to remain in the US indefinitely (i.e., F-1 student visa; B visitor visa). Can my spouse file a green card petition on my behalf?

This depends on a variety of things. If you are in the US in a visa status that does not specifically allow what is known as “dual intent” (the intent to remain in the US both temporarily, and indefinitely), it may be permissible for your intent to change depending upon changed circumstances. However, in a situation in which you tell a US Consular officer or border officer that you intend to remain in the US only temporarily, such as is required to enter the US in either visa waiver visitor status or on a B-1 business visa or B-2 tourist visa in your passport, and your spouse then files a green card petition for you shortly after you enter the US, USCIS may find that you misrepresented your intent to remain in the US, which could then allow USCIS to deny your green card petition. It is important that you consider these circumstances carefully before your spouse files a green card petition on your behalf.

I entered the US legally, and I am still in the US, but my status has expired. Can my spouse still file a green card petition for me?

Yes. Generally, those who have overstayed their status in the US cannot file a green card petition while present in the US. However, US immigration law provides for an exception for those who are spouses of US citizens. So even though you have overstayed your status, if you entered the US legally (that is, you were inspected by a US immigration officer when you last entered the US), your US citizen spouse may still file a marriage-based green card petition on your behalf in the US.

I am a green card holder (lawful permanent resident of the US), but I am not a US citizen. I married my spouse in a country or US state where same-sex marriage is legal. Can I still sponsor my non-US spouse for a green card?

Yes. Lawful permanent residents of the US can file a marriage-based green card petition for same-sex spouses. However, note that since you are not a US citizen, your spouse would not be considered an “immediate relative” under US immigration law. So, your spouse’s petition would be part of the family green card preference system, which means that after having the first step of the petition approved by USCIS, you must wait for your category to become “current” under the annual visa quotas (currently, there is approximately a two year wait for spouses of US green card holders). If you become a US citizen while your spouse is waiting for his/her visa category to become current, you can upgrade her/his petition to the “immediate relative” category and file a green card petition immediately.

IMPORTANT NOTE: The mere filing a green card petition for your spouse in any category other than the “immediate relative” category does not grant him or her legal status in the US while s/he waits for the visa category to become current. So your spouse would need some other legal visa status in order to remain in the US while waiting.

I am a lawful permanent resident (LPR or green card holder), but I am not a US citizen. Can I file a fiancé(e) petition (K-3 visa) for my spouse?

No. Only legally married spouses of US citizens are eligible for the K-3 visa (fiance/fiancee). Spouses of green card holders are not eligible for the K-3 visa category.

I am a US citizen petitioning for my spouse, and we are each living in the US. How long will it take for him/her to obtain the right to work in the US?

Once you file your green card petition for your spouse in the US, assuming your spouse has no ineligibilities, then s/he can obtain blanket employment authorization for work within 30 to 90 days of filing.

I am a US citizen, and I’m petitioning for a marriage-based green card for my spouse inside the US. How long will the process take?

This may vary substantially according to a number of factors, including which USCIS field office has jurisdiction over your case, the priorities of USCIS as well as the volume of marriage petitions at the time of filing. For a list of local field office processing times, please visit https://egov.uscis.gov/cris/processTimesDisplayInit.do.

I am a US citizen, and I’m petitioning for a marriage-based green card for my spouse through a US consulate outside of the US. How long will the process take?

This varies widely depending on a number of factors, including the workload of the particular consulate where you file your application, and the priorities and workload of the National Visa Center (NVC), which will process your spouse’s immigrant visa application at the consulate. Generally, consular processing of a marriage-based immigrant visa takes no less than between 9 and 12 months.

I am a US citizen, and I would like to petition for a K-1 visa on behalf of my spouse, or a K-3 visa on behalf of my partner at a US consulate overseas. How long will this process take?

Again, the timeline for the K-1 visa or K-3 visa varies enormously depending on which consulate is processing it. However, generally, the process will take about 6 to 9 months.

See also Marriage-Based Green Card petitions and the K Visa (spouses or fiancé(e)s of US citizens).