Provided that the marriage is legally recognized, a same sex spouse can qualify for a green card under United States law.
You should work with an experienced same sex marriage immigration attorney at The Hayoon Kane Law Firm, PLLC to give you the best possible chances of success in the green card process. We assist clients from all different backgrounds and circumstances with obtaining their desired immigration benefits and making the process as stress-free as possible.
Can Same-Sex Couples Apply for Marriage-Based Green Cards?
There is a very clear answer to this question. Same sex couples can apply for spousal green cards. Chapter 2 of the USCIS Policy Manual addresses same sex marriage and green cards. The Manual states that the USCIS policy changed in 2013 when the Supreme Court found that the Defense of Marriage Act was unconstitutional. When assessing a same sex marriage, USCIS applies a “place of celebration rule.” If the marriage was legal in the jurisdiction where it was performed, it should be recognized under United States law.
The other fiancé must live outside of the United States. The couple must have been in person at least once in the preceding two years. They must also be legally free to marry.While a U.S. marriage green card is the first step for the spouse to enter the country, it may also be the introductory step in a process that eventually leads to citizenship. There are two types of green cards by marriage:Presumably, you begin with a conditional green card before seeking to remove the conditions on your status and receive a permanent one.
Requirements for a Same-Sex Marriage Green Card
The requirements for a gay marriage green card are the same as those for an opposite sex marriage. To qualify for a spousal green card, the applicant must demonstrate the following:
- There was a lawful marriage that was recognized in the jurisdiction in which it was performed
- There is a bona fide relationship between the spouses (the marriage is not just being used for immigration purposes to qualify for a green card)
- The petitioner is either a United States citizen or a lawful permanent resident
- The beneficiary of the application must be otherwise eligible for an adjustment of status
There are no special requirements for a same sex marriage green card. Nonetheless, you should seek legal help from a same sex marriage immigration lawyer who is familiar with the process and how the USCIS is currently interpreting policy and regulations.
The Green Card Process for Same-Sex Spouses
The process you need to follow depends on where the spouse is located. If they are already in the United States, you can apply for an adjustment of status. Filing the I-130 form to establish a relationship with your spouse is the first step in the process. You also need to include documentary evidence that allows USCIS to conclude that there is a bona fide relationship. The spouse can concurrently file Form I-485, which includes information about themselves.
Regardless of where the spouse is, they must undergo an interview. The interview will occur at the consulate or embassy if they are abroad. If the spouse is located in the United States, they might schedule both a marriage interview and a biometrics appointment. USCIS considers the petition and issues a decision after review.
How Long Does it Take to Get a Same Sex Marriage Green Card?
There is very little predictability in the timing for approval of a same sex marriage green card. There is a wide range of outcomes regarding how long it takes to receive a decision from USCIS. Much depends on where you file the petition (in the United States or abroad) and the USCIS caseload. In addition, approval may be delayed if USCIS has any Requests for Evidence or questions about the petition.
It can take between 9 and 18 months for a same sex green card to be approved. You can expect the interview to occur earlier in the process, and then it may take a considerable amount of time to get the ultimate decision from USCIS.
Challenges Involved in Same Sex Marriage Immigration
Even though there are no differences in theory from opposite sex marriage green cards, there may be some distinctions in how the application is considered. The applicants need to present evidence of a bona fide relationship, which may require cooperation from their families. If the families do not favor the marriage, they may not cooperate in providing the necessary information for the green card application to be approved.
Proving that the marriage is the product of a bona fide relationship may also be challenging. USCIS may look closely at each spouse’s personal history. One or both spouses may have previously been in a heterosexual marriage, which can cause USCIS to question the legitimacy of this marriage. The same goes if one or both spouses have children from a prior marriage or relationship. Finally, even though same sex marriage is the law of the land, petitioner may fear discrimination in how the law is applied to them and their green card petition.
Reasons for Same Sex Green Card Denials
There are no indications that there is a lower approval rate for same sex marriage green cards than there is for heterosexual marriages. If USCIS denies the green card petition, it can be for the same reasons they might reject an application from heterosexual spouses.
Reasons for same sex green card denials include:
- There is a lack of evidence of a bona fide relationship and marriage between the spouses
- The spouse would not be eligible for a green card because they have a criminal record, or they are a national security risk
- There is no evidence that there is adequate financial support for the spouse who is seeking a green card
- There is information missing from the application or mistakes in the paperwork
- The spouse may have a history of prior immigration violations, such as illegally working in the United States or overstaying a visa
If you believe that USCIS has made a mistake in denying the petition, you can seek a review of the decision. First, you can seek reconsideration of the decision within the USCIS if you think that there was an error of fact or law in the decision. You can also seek to reopen your application if there is additional evidence that USCIS needs to consider.
You also have the right to file an appeal with either the Board of Immigration Appeals or the USCIS Administrative Appeals Office.
What Happens in the Event of a Same Sex Divorce?
Again, same sex marriages are treated the same as heterosexual marriages in the event of a divorce. If the spouse holds a permanent green card (they have been married for longer than two years, and there are no conditions), they are at risk of having to leave the United States.
There may be more challenges if the spouse holds a conditional green card, they can face more challenges. However, a spouse may still obtain a permanent green card if they can prove that there was a bona fide marriage. Still, you need an experienced same sex green card attorney to help prove that there is good faith and to answer any questions the USCIS may have.
Why You Need a Same Sex Marriage Immigration Lawyer?
You should seek help from an experienced immigration lawyer whenever you have a legal matter that involves USCIS. This holds even more true in matters involving same sex marriage immigration. When you hire a same sex immigration attorney, they can do the following to help you:
- Explaining the legal process that may play out so you know what to expect going forward
- Helping you prove that there is a bona fide relationship between you and your spouse
- Preparing the documentation that you need to include with your green card petition
- Preparing the necessary forms to file with USCIS
- Helping you and your spouse get ready for interviews with USCIS
- Responding to Requests for Evidence from USCIS
- Ensuring that there is no discrimination in your case
- Representing you in an appeal if your green card petition is denied
As you can see, there are many valuable things that a same sex marriage green card lawyer can handle on your behalf. You can have more confidence and peace of mind when you choose to get legal help.
Contact a Las Vegas Same Sex Green Card Lawyer Today
If you need help with the same sex marriage green card process, reach out to an immigration lawyer at Hayoon Kane Law Firm, PLLC. We have experience in all types of family immigration matters and have a track record of helping our clients obtain results. We can help you live permanently in the United States.
Our law firm has an office in Las Vegas, and we help clients with their immigration matters across all 50 states. You can schedule a free green card approval strategy session with no obligation to you whatsoever. We will explain the process and what you are facing. You can schedule an appointment to speak with a same sex green card lawyer by visiting our website or by calling us today at (702) 463-7630.
