While the Supreme Court’s decision to repeal Section III of the Defense of Marriage Act (DOMA) was lauded by many groups, few have been as immediately and directly impacted as immigrant same-sex partners of US citizens or Lawful Permanent Residents (LPRs). Previously, legally married same-sex spouses were excluded from receiving certain benefits because the federal government did not recognize same-sex marriage. Immigrants were unable to qualify for family-based visas.
After the Supreme Court ruling, President Obama directed all federal agencies to implement the ruling smoothly and swiftly. The Department of Homeland Security quickly complied and in early July, 2013, the first same-sex marriage based green card was issued to an Irish nurse living in Colorado with her wife and their three children. Many immigrants are now wondering how to receive a green card through same sex marriage.
Same-sex married partners are now able to sponsor their spouses for a green-card. Families that have already begun the visa application process, or who have previously had an application denied based on the DOMA laws, may be able to contact the United States Citizenship and Immigration Services (USCIS) department to request that a review of their application be made in light of the new policies. USCIS has maintained a list of applicants who were denied green cards based on their marital status, in the event that the DOMA challenge succeeded. These denials will now be reversed. Some couples have been pleasantly surprised with a call from USCIS informing them of their change of status.
Other bi-national couples may have sought other means to keep their family legally untied in the United States. However, those families may want to reconsider applying for a green card. Any person who is legally married to a US citizen is eligible to receive a green card through same sex marriage. However, the same rules and regulations that govern the process for opposite-sex couples will apply.
One requirement that same-sex couples should note is that they must be legally married in a jurisdiction that recognizes same-sex marriage. That includes marriages performed both inside the United States and abroad. Individuals who are legally married, but currently reside in a state which does not recognize their marriage are still eligible to receive a spousal visa.
Unmarried couples will also now have the option of applying for a green card through same sex marriage. However, they will face the same scrutiny applied to opposite-sex couples who begin the visa process after marriage. One of the legal requirements to receive a marriage based green card is that the marriage be bona fide. USCIS conducts extensive investigations to determine whether a marriage is legitimate. Many couples may now feel pressured to get married in order to help their partner remain in the country. While this is admirable, it may not be the best reason to get married.
Same sex partners who are unsure about their options should contact a same-sex immigration attorney with experience helping LGBT clients to get more information.
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