Gay Marriage and Immigration FAQ: Same Sex Couples Can Now File Visa Petitions

In its long-awaited decision, the Supreme Court has ruled that the Defense of Marriage Act (DOMA) is unconstitutional. This means that the federal government – including the immigration agency – can no longer refuse to recognize same-sex marriages. U.S. Citizens and Lawful Permanent Residents can now file I-130 Relative Petitions for same-sex spouses. This decision is life-changing for many of our clients, and we are already filing visa petitions for eligible same-sex couples.

At the same time as its ruling on DOMA, the Court dismissed the Prop 8 case on standing grounds. This means that the victory in the trial court for same-sex couples remains in place and gays and lesbians will be able to marry in California.

Frequently Asked Questions

Where Can I Get Married?

It is not necessary to get married in the same state or country in which you reside. However, some states have waiting periods or residency requirements.

Same-sex couples will be able to marry in California following the Supreme Court’s decision in the Prop 8 case. Same-sex couples can also legally marry in Connecticut, Delaware, Iowa, Massachusetts, New Hampshire, New York, Vermont, Maine, Maryland, Washington, and the District of Colombia. Two additional states – Minnesota and Rhode Island – have enacted same-sex marriage laws which will go into effect in August 2013.

As of June 2013, same-sex marriage is also legal in Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, and Sweden. New Zealand and Uruguay have enacted same-sex marriage laws which will go into effect in August 2013. Marriages conducted abroad are recognized in the U.S., with some limited exceptions.

What Are the Requirements for Obtaining Permanent Residence (a “Green Card”) Through a Spouse and How Long Does the Process Take?

In order to obtain permanent residence (a “green card”) through a spouse, the couple must establish that the marriage is “bona fide,” which means that the relationship is a real marriage and not a sham in order to obtain immigration benefits. In addition, the immigrant must show that he or she is not otherwise barred. Some of the more common bars include certain criminal bars or a history of immigration fraud. These are not the only bars and individuals are encouraged to consult with an attorney prior to applying.

Processing times depend on whether the immigrating spouse is in the United States or outside the country. Applicants who are in the U.S. and eligible for adjustment of status will be interviewed by a CIS officer at the office having jurisdiction over the applicant’s place of residence. CIS is taking approximately 90 days to schedule interviews. If the application is approved at the interview, the “green card” arrives in the mail a few weeks later.

My Spouse Is In the U.S. But Overstayed Her Visa – Can I Still Get Her a Green Card?

Yes. Simply overstaying a tourist visa or student visa is not a bar to obtaining permanent residence if married to a U.S. citizen. However, previous overstays may have a negative impact and other bars may apply. Potential applicants are encouraged to consult with an immigration attorney prior to applying.

My Spouse Entered the Country Unlawfully – Can I Still Get Her a Green Card?

An applicant must show that he or she entered the U.S. lawfully in order to apply for permanent residence without having to leave the country. (An exception to this requirement is where someone filed a petition for the applicant prior to April 30, 2001).

Individuals who did not enter the U.S. lawfully may still seek to obtain permanent residence (a “green card”) through a spouse. However, the applicant would have to depart the United States and apply at the U.S. Consulate. It is extremely important to speak to an immigration attorney before departing the United States as there are bars to returning if a person has accumulated a certain amount of unlawful presence in the U.S. These bars can be waived if the applicant can show extreme hardship to a spouse or parent who is a U.S. citizen or permanent resident.

To determine whether departing the U.S. to seek permanent residence through a spouse is a good option in your particular case, it is recommended that you consult with an immigration attorney.

I Have A Same-Sex Fiance – Can I Bring My Fiance to the U.S.?

Yes. To bring a fiance to the United States, you must be a U.S. citizen and you must intend to marry within 90 days of the fiance’s arrival to the United States, among other requirements. It is not necessary to marry in the same state in which you reside. Please contact our office for more information.

How Can I Consult with an Attorney About Obtaining a Green Card for My Spouse or Fiance?

Please contact Wiley & Jobson, or call us at (415) 627-9161 to schedule a consultation if you would like an evaluation of your case. The consultation can be in person or by phone.

We will continue to provide answers to frequently asked questions regarding same sex marriage and immigration. You can also follow us on Facebook or Twitter for immigration news and office updates.