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Same Sex Immigration Process in the US

The US Supreme Court recently held in Obergefell v. Hodges that the 14th Amendment to the US Constitution requires all states to issue marriage licenses to persons of the same sex and to recognize the validity of the marriage if performed in any other state. However, same sex spouses have been accorded the same rights as heterosexual couples when it comes to immigration law since the court’s 2013 ruling inUS v. Windsor where it ruled that Section 3 of the Defense of Marriage Act (DOMA) violated the Due Process Clause of the 5th Amendment. DOMA previously stated that the federal government would only recognize heterosexual marriages as valid under federal laws, including for all immigration purposes.

In the interim between Windsor and Obergefell, same sex couples could receive all immigration benefits so long as their marriage was valid where it was performed. Since not all states had legalized gay and lesbian marriages, those couples had to go to a different state to marry where it was valid in order to obtain federal benefits. The only obstacles remaining since the Obergefell decision are the proffered threats by some state governors to allow court clerks to deny marriage licenses if their personal religious beliefs conflicted with issuing a license to a same sex couple.

Visas are Available for Same Sex Couples

Since the Windsor decision, gay and lesbian married couples may now apply for the following family sponsored visas:

  • K-1 Fiancé visas
  • K-3 Marriage visas
  • Adjustment of status or formI-485 to receive a green card or permanent residency
  • Waivers based on qualifying US citizen or LPR spouse

If you are a US citizen or permanent resident married to a foreign national, you can file a formI-130. The visa or adjustment of status will no longer depend on the nature of your marriage. If engaged to a foreign national, file formI-129F, or a same sex engagement, for your spouse to gain US entry for marriage.

Because the USCIS is reopening petitions or applications that were previously denied based on DOMA or were based on the existence of what the federal government defined as “marriage, “no new fees are required. A benefit of being married is that naturalization is now available after 3 years instead of the usual 5 if you have been living in marital union with a US citizen spouse who has been a citizen for that period of time.

If there was a deportation order issued because a same sex partner was unable to obtain a visa, relief is available through cancellation of deportation of removal and adjustment of status in proceedings. TheI-212 waiver is a consent to reapply for admission if you were deported or deemed inadmissible by error. The INS is not requiring the usual fee of $585. This waiver is not applicable to non-citizens who left pursuant to a voluntary order of deportation and did so in a timely fashion.

Some waivers are subject to hardship and a FormI-601, Application for Waiver of Grounds of Inadmissibility, may have to be filed. The form lists the conditions for filing this particular form.

Same sex spouses can also accompany spouses who are able to obtain employment visas such as:

  • H-4 visas for spouses holding H1B Specialty Occupation visa
  • L-1 visas for spouses holding L-1 intracompany transfer visa
  • E-2 visas for spouses holding E-1 treaty trader or investor visa

If you are planning on marrying in the US, be aware that your marriage will be subject to the same scrutiny by the USCIS to determine if there is fraudulent intent or that the marriage is solely for the foreign national spouse to gain a green card.

Otherwise, refugee status, asylum, naturalization and discretionary waivers are now granted to all couples. If you are a same sex couple that is married or wish to marry and one individual is a foreign national, the same laws and rules apply as if you were a heterosexual couple for all immigration purposes.

Retain the Lee, Green, Stewart & Paul Attorneys at Law Office

Whether you have a same sex marriage and are concerned about how the immigration laws apply to you and your spouse or have questions regarding any other immigration issues, contact the Lee, Green, Stewart & Paul Attorneys at Law Office in Pasadena. Our attorneys have years of practical experience in handling same sex immigration issues, asylum, removing conditions on green cards, family based immigration, citizenship and naturalization matters. Call them today to discuss any of your immigration concerns.