The 2013 Supreme Court case of United States v. Windsor, 133 S.Ct. 2675 (2013); declared the Defense of Marriage Act (DOMA) unconstitutional, making it possible to file Immigration Petitions based on same-sex marriages, and regardless of the sex, gender or sexual orientation of parties.
I-130 Petitions for Alien Relative
USC or LPR can file a “Petition for Alien Relative” on Form I-130, with the U.S. Citizenship and Immigration Services (USICS) as a first step towards obtaining Permanent Residence (a green card) for their Spouse. The couple have to establish their marriage is legally valid and that they got married to live in a marital relationship (and not solely for immigration benefits).
A marriage legal in the place where it was celebrated, is legally “valid” for immigration purposes, unless the marriage is considered void under state law in the state of residence or as contrary to federal public policy. (for example, polygamous or incestuous marriages.) Civil unions or similar legal protections for same-sex relationships will not meet the U.S. federal definition of a legal marriage. If same-sex marriage is impossible in the country where they are residing, the couple must consider travelling to another country to get married.
Same-sex couples, just like opposite-sex couples have to provide documentation to establish their marriage is bona fide. USCIS will check if prior marriages (including prior opposite-sex prior by those in a same-sex marriage) to U.S. Citizens or LPRs were not fraudulent, or entered into solely for immigration. A prior Civil Union or Domestic Partnership can be used as evidence of a bona fide marriage. If a couple is not out to one or both of the spouses’ families, Immigration Agencies need to be requested to not contact the family to verify the bona fides of the marriage, which is sometimes done in opposite-sex marriage cases.
Consular Processing
If the Foreign National Spouse is in the U.S. and has entered the U.S. legally, they can usually file an I-485 Application to adjust Status with USCIS to obtain a Green Card. If the immigrating spouse is not in the U.S. or not eligible for adjustment of status, they must apply for an immigrant visa at a U.S. consulate abroad a process known as consular processing. If it is unsafe to proceed with the marriage-based interview at the consular post assigned to the foreign national spouse because there is a strong culture of homophobia, transphobia or other anti-LGBTQ discrimination, a request for a change of interview venue to different country should be made.
K-1 Visa for Fiancées of U.S. Citizens
K-1 is a non-immigrant visa that allows the fiancé(e) to enter the United States to marry a US Citizen within 90 days of arrival. It is useful, where the couple or the foreign national lives is a country that does not recognize same-sex marriages. To qualify for this visa, the couple must show they have met in person within the past two years, that they intend to marry, and that they can legally marry. If the couple do not marry within 90 days, the fiancé(e) is deportable unless the couple marry after 90 days and the same Petitioner submits an I-130 immigrant visa Petition. In response to fears of homophobic responses by local officials, The State Department has said that LGBTQ fiancé(e)s may request not to have their US Citizen same-sex partner’s name on the immigrant visa foil. After the marriage, the immigrant spouse must apply for adjustment of status to permanent residency at a USCIS office in the United States. If the U.S. citizen spouse dies before the K-1 visa holder adjusts his or her status, the immigrant spouse may file the adjustment application just as they would have done if the U.S. citizen petitioner had not died.
Victims of Domestic Violence within LGBTQ Relationships
Please read the section on our website related Petitions under the Violence Against Women Act (VAWA), which allow foreign nationals spouses abused by U.S. Citizen or Legal Permanent Resident Spouses to Self-Petition for permanent residence regardless of sex, gender or sexuality. For those abused by non U.S. Citizen/Legal Permanent Resident Spouses or abused by partners they are not married to it may be possible to file a U visa Petition for Non- Immigrant Status, that eventually leads to ability of applying for Permanent Residence.