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Can I Sponsor a Same Sex Partner for the Green Card Immigration Process?

Once upon a time, the Defense of Marriage Act (DOMA) did not recognize same-sex marriage immigration as legitimate and did not allow such couples to enjoy the same benefits as heterosexual couples. DOMA, however, was repealed in June 2013 by the US Supreme Court in United States v. Windsor in which the high court ruled that DOMA was unconstitutional, thus allowing gay couples to be treated no differently than heterosexual couples when applying for a green card or permanent resident status.

Like any married couple where one spouse is a non-citizen and is being sponsored for a green card by the US citizen or permanent resident spouse, the marriage must be legitimate in the eyes of the USCIS or immigration service. This may prove to be difficult for some couples who may have hidden their status from their families or friends or who may have intentionally misrepresented their gay immigration status in previous immigration documents.

Many states recognize same-sex marriages but there are some hold-outs. For same-sex immigration purposes, you should only marry in a state where same-sex marriages are legal or in a country which recognizes such marriages. If you do, then federal law preempts any state restrictions regarding immigration status. Also, the naturalization period is reduced to 3 years after the foreign national gains permanent resident status and has been in a marital union with a US citizen or permanent resident during that time.

Process of Obtaining a Green Card Through Marriage

If your non-US citizen or permanent resident spouse is outside the US, then the procedure is referred to as Consular Processing. An official at a US Embassy or Consulate in the country where the non-US spouse resides will conduct the interview to determine the legitimacy of the marriage before a green card is issued. This process can take 9 to 15 months. A K-3 marriage visa is then obtained so the couple can enter the US.

If your non-US spouse is in the US, then an Adjustment of Status is required, which can take 4 or 5 months to complete.

Should you be engaged to be married to a foreign national whether of the same or other sex, then you file a Form I-129F and if all other immigration criteria are met, your spouse can enter the US to marry here after obtaining a K-1 fiancé visa. You are required to marry within 90 days after entering the US.

Recognizing a Valid Marriage

When sponsoring a foreign national as a spouse, you and your spouse will be subject to an interview by the USCIS to determine the validity of the marriage, same-sex or heterosexual. A USCIS officer will look at any number of factors in this decision. In a number of these cases, a foreign national has overstayed a visa. Under US immigration law, if you overstay 180 days or more, you are banned from re-entering the US for 3 years. If you are found to be in the US illegally for at least one year, the ban is for 10 years. This is waived if the foreign national legitimately marries a US citizen or permanent resident, regardless if it is a same-sex marriage.

At the interview, the couple should have certified copies of the marriage certificate and birth certificates. If married overseas, find out what valid record legitimizes the marriage. The officer will ask basic questions about you and the marriage. It is a good idea to provide copies of your wedding invitations, photographs of the wedding and evidence of joint accounts or title to property as evidence of your marital union. Should the officer suspect fraud, then you and your spouse may be separated and the officer will ask more intimate questions designed to prove that the parties are engaging in a fraud. The officer is looking for the same or similar responses to personal questions that the spouses should know about each other if they are indeed intimate.