SAME-SEX MARRIAGE IMMIGRATION ISSUES
Since the death of the Defense of Marriage Act (DOMA) we’ve helped or advised dozens of hardworking mixed-status couples attain prosperity by removing the specter of deportation.
We believe strongly that all people are entitled to the same civil benefits, and that if rights are taken from some, they are taken from all.
With the Supreme Court’s historic ruling on June 26, 2015, the fundamental constitutional rights of gays and lesbians to marry has been affirmed. But immigration benefits for same-sex couples have been available since June 2013 when the Supreme Court struck down DOMA.
The federal government was quick to implement the required policy changes and in particular immigration benefits. Before these changes married spouses of the same-sex could not get immigration benefits for this type of relationship. With the Obergefell v. Hodges decision, it will become even easier.
As of June 26, 2015, any U.S. citizen or permanent resident may marry a person of the same sex anywhere in the US and have the federal immigration authorities bound to recognize the marriage. US citizens may petition for same-sex fiancé(s) overseas and marry then within 90 days of entry. The required evidence and documents needed for this petition are identical to those who are of the opposite sex. These are
photocopy marriage certificate
proof of the U.S. citizen’s or permanent resident’s status
photocopies of the foreigners passport
evidence previous marriages and their terminations
“Proving” Sexual Orientation
It is also prudent to include some form of evidence of each party’s sexual orientation. This is especially important if one or both parties was formerly in a heterosexual relationship or marriage. Same-sex couples have the same burden of proof as heterosexual couples: that the marriage is bona fide for immigration purposes and not entered into primarily or solely to obtain immigration benefits.
In our experience, we have “proven” sexual orientation by:
Affidavits from friends and family
Medical records (where frequently a physician will note the patient’s sexual orientation)
Photographic evidence of an amorous same-sex relationship
Are You Active Duty Military or A Veteran? This Might Be An Even Easier Process For You.
If the non U.S. spouse of the same sex is marrying a person who is a U.S. citizen and is present in the United States, she or he can file an application for permanent residency by filing the application for “adjustment of status” at the same time as the Form I-130 Petition.
If the same sex foreign spouse is marrying a U.S. citizen but is not in the U.S. she or he can apply for an immigrant visa via “consular processing,” which takes place at a U.S. consular post.
If a foreign spouse is already married to someone who is a U.S. permanent resident, normally there is a waiting period before an application for permanent residency may be filed. In this situation, the foreign spouse is given a “priority date” for the filing of a I-130 on her or his behalf, and once the date has been reached a permanent residence application can be filed.
K-3 visas for same-sex spouses who are from overseas and are married to a U.S citizen are available, and K-2 visas for the fiancées of U.S. citizens. Also, derivative status is available for spouses of the same sex of primary applicants and other visa categories, including H-1B and L-1 work visas.
Read more about marriage and immigration.