DOMA is DEAD: What Same Sex Couples Need to know about Immigration Options?
I am still at the American Immigration Lawyers Association Annual Conference in San Francisco. We just finished a panel about LGBT Same Sex Immigration Issues. The confusion is whether Gay Couples can now file for Immigration benefits and how will that work. The representative from Marriage Equality was very helpful and pointed us to their site, see below an initial FAQ From Marriage Equality:
What did the Supreme Court say about DOMA?
The U.S. Supreme Court held that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional. Section 3 of DOMA was a federal law that limited federal marriage recognition to different-sex couples. Because immigration law is federal, DOMA prevented lawfully married lesbian and gay couples from obtaining lawful permanent residence (“green cards”) through marriage. Now that DOMA has been struck down, American citizens and lawful permanent residents can submit green card applications for their same-sex spouse.
Can LGBT couples get green cards now?
Yes, most families will now be able to obtain a green card.
With the end of DOMA, LGBT families will be treated the same under immigration law as different-sex immigrant families. Immigration law is complicated and there will still be barriers for some couples, but the systemic discrimination that prevented our families from receiving the same respect under the law as others has ended. Green card applications will no longer be denied solely because a couple is lesbian or gay.
JJS NOTE: At the Conference, USCIS Alex Mayorkas stated that couples can now file for Green Cards and that previously denied I-130 filed with the Service will be reviewed based on the new guidelines.
Do we have to live in a marriage equality state to apply for a green card?
No. If you have a marriage that is valid in the state or country where you were married – regardless of where you live – that marriage makes you eligible to apply for a green card.
The United States Citizenship and Immigration Services (“USCIS”) looks to see whether you entered into a valid marriage in the state or country where you married. While some federal benefits may only be available to married couples if you live in a state which recognizes your marriage, fortunately, this is not the case for immigration benefits.
We married in Canada. Do marriages from outside the U.S. count?
Yes. As long as the marriage was validly entered into, it is sufficient for immigration purposes. In fact, Edie Windsor, the plaintiff in the Supreme Court case, married her wife in Canada.
Does a civil union or domestic partnership count?
The answer to this is not entirely clear, and we hope to have guidance on this soon. If it is possible for you and your partner to marry, you may be better off marrying because you could then feel more secure that your relationship will be recognized for immigration purposes without having to wait for further guidance.
My partner can’t get a visa to get to the United States, and we can’t marry in his/her country. What are our options?
U.S. citizens can file fiancé/e visa applications for committed partners. This application requires the couple to demonstrate that they have a “bona fide” relationship. When the visa is granted, the couple is required to marry within 90 days of the foreign partner’s entry into the US. Once married, the couple can file the marriage-based application from within the United States.
For families that can travel to another country that has marriage equality, another option would be to marry there and then have the U.S. citizen sponsor the foreign national spouse for a green card through consular processing in his/her home country.
We live in exile. How soon can we come home?
For couples in exile together, the U.S. citizen could file for a fiancé/e visa or the couple can marry and the foreign spouse can consular process. It will take several months before a visa is actually issued, but processing times vary by consulate. Therefore, we cannot say exactly how long it will take before families are able to return to the United States. Keep in mind that once a foreign national becomes a green card holder, s/he must live primarily in the U.S. If you are not ready to move home, it may be too soon to apply.
Once I apply to sponsor my spouse, how long will we have to wait until s/he can work?
For couples who live in the United States together, it is common to file an application for work authorization along with the application for lawful permanent residence. Processing times vary throughout the U.S., but generally employment authorization documents (EADs) are issued within 90 days, and marriage-based interviews are generally scheduled within 9 months after filing.
My partner is here on a work visa. Is a marriage-based visa better?
It depends. In general, marriage-based petitions are adjudicated quicker than many other applications for lawful permanent residence. Employment-based petitions are complex, with most categories requiring the employer to prove that there are no U.S. workers able, willing, and qualified to fill the position. There is also an annual cap on the number of employment-based green cards that can be issued, which has created years-long backlogs in several employment-based categories.
Since there is no limit to the number of green cards that can be issued to the spouses of U.S. citizens, a marriage-based petition may result in a green card much more quickly. However, in a marriage-based case, the American spouse has to file an affidavit of support proving that he or she can maintain the applicant at above 125% of the poverty level. So, in some cases, it may make sense to pursue lawful permanent residence through an employer if that’s an option. Regardless of whether a foreign national obtains a green card through a marriage-based petition or through a different avenue (like an employer), he or she can apply to become a citizen after three years (rather than five) if married to an American citizen.
I am undocumented, my partner is American. Can we apply?
It depends. Under U.S. immigration law, the general rule is that a person who is in the U.S. without lawful status cannot change from within the U.S. from being here unlawfully to being here lawfully. One significant exception to this rule is that the spouse of a U.S. citizen can apply for a green card from within the U.S. (to “adjust status”) as long as he or she entered the U.S. through a valid port of entry, in other words, following inspection by a U.S. official.
For those undocumented individuals who entered the U.S. without inspection (“EWI”), the applicant must return to his or her home country to apply. In the past, this was unworkable for most families, because once the applicant left the country he or she was barred from returning for many years. There is now a waiver available which can minimize the length and uncertainty of that wait.
We have children. How will this affect them?
Generally, when a U.S. citizen files an application for lawful permanent residence for a spouse, he or she can also file for the spouse’s children as “step-children.” Even if you don’t see your children as “step-children,” if the foreign spouse is the biological parent of the children, filing a step-child petition for lawful permanent residence will probably provide the most efficient way to obtain their green cards. You and your partner must have married before the child turned 18, and the child must currently be under 21 and unmarried in order to get a green card at the same time as the parent’s marriage-based green card.
What about the immigration reform bill? Do we need to be in it now?
As long as USCIS and the Department of State interpret the Supreme Court decision as they should, we should not need further legislative action to provide relief to married lesbian and gay couples.
Immigration reform is still important for LGBT people, however. There are critical protections in the bill for asylum seekers, alternatives to detention for LGBT detainees, and procedural protections for those who are detained, including limiting the use of solitary confinement for LGBT detainees. The bill also provides a pathway to citizenship for those who are in the U.S. without lawful status, at least a quarter-million of whom are LGBT. The bill further provides an accelerated path to citizenship for DREAMers, young people who came to the US as minors, grew up as Americans, and whose movement for change has been led by many brave LGBT people.
Do we need a lawyer? Do we need a lawyer that specializes in LGBT issues?
It’s always a good idea to have a lawyer when applying for an immigration benefit and spousal petitions can be very complicated.
Immigration law is very complicated. While many people successfully file marriage-based applications for lawful permanent residence without a lawyer, we generally recommend that people should seek out representation by qualified counsel.
Issues that can come up after filing for Immigration benefits for same sex couples?
Immigration Law is already complicated. In regular Marriage Cases a couple must show that the marriage was bona fide and not entered just to obtain immigration benefits. This can be demonstrated by providing joint documents, pictures and affidavits from friends and family for example.
I feel that in Same Sex cases the burden of proof is going to be higher. Short term relationships will be scrutinized more. Some LGBT applicants may not be comfortable to expose their orientation to their families for various reasons, so trying to verify a relationship may prove to be more complicated.
USCIS will surely develop some guidelines as to the way they must handle such cases. Until such guidlines are released, it is prudent for applicants to consult with an experienced Immigration Lawyer that has some understanding of LGBT issues. If you have questions about the new changes, feel free to email us
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