Same-Sex Relationships And Marriage Green Cards
Since July 2013, couples in same-sex marriages have enjoyed the federal benefits of marriage-based green card application as laid out in the revised Defense of Marriage Act (DOMA) of the United States of America. Following the Supreme Court ruling that upheld the United States v. Windsor civil rights case, same-sex couples have the same privileges as heterosexual couples.
Is The Green Card Application Process Different For Same-Sex Marriage In The United States?
If you are in a same-sex union, the process of getting a green card for your partner isn’t different from that of a heterosexual relationship.
As a green card holder, you could facilitate the migration of your partner into the United States for education, employment, or asylum. This includes the spouse’s children, who become the stepchildren of the same-sex marriage.
However, just like heterosexual marriages, same-sex marriages have to be genuine to ensure same-sex couples aren’t getting married just for immigration purposes.
How To Authenticate Your Same-Sex Marriage
To pass the authenticity test as a same-sex couple in U.S. immigration laws, you must prove that you are legally married. This is one of the challenging steps in the green card application since there have been cases of marriage fraud for the purposes of obtaining a green card. You should do the following to validate your union:
Provide Proof That You Live Together With Your Spouse
If you are in a same-sex marriage, you could use joint mortgage documents, utility documents, and property ownership certificates to prove that you live together in the United States. Copies of driving licensing showing the same address will also prove that you and your partner are genuinely in a same-sex marriage.
Prove You Have Children Together
To pass as a same-sex couple living in the United States, you could provide birth certificates, medical records, adoption documents, and family photos showing that you are the legal parents of a child. Fertility records and insurance policies stating a child as a beneficiary could authenticate your same-sex marriage.
Does The Location Of The Residence Matter In The Same-Sex Green Card Application?
No, it doesn’t matter. If your marriage is legal, where any of you live does not matter in the immigration process. However, the marriage must be officiated in the United States or in a country that allows same-sex marriage. If your partner lives in a foreign country but is your legally wedded husband or wife, they can apply for a green card.
Marriage Based Green Cards Explained | Read more
Countries That Allow Same-sex Marriages
One of the determinants of a legal same-sex marriage is where the marriage was officiated. It is important to ensure your marriage is officiated in a country that supports same–sex marriage. Same-sex couples who come from countries where such marriage is illegal could experience challenges verifying their marital status.
The following are the countries where same-sex marriages are allowed, as of February 2021.
• New Zealand
• Costa Rica
• South Africa
Do Civil Unions And Domestic Partnerships Count as Marriage?
No. You have to be legally married with the necessary supporting documents to apply for a green card. You don’t have to get married in the U.S., but you must ensure you get married in a country that permits same-sex marriages. Same-sex couples should enquire about same-sex marriage laws in their countries before getting married outside the U.S.
How To Get A Green Card? | Read more
Does That Mean Same-sex Couple Cannot Apply For A Green Card If They Are Unmarried?
No. If your partner is living outside the United States, he or she could apply for a fiancé (e) k visa. The visa allows your partner to migrate to the US, where you could formalize your same-sex marriage. This helps same-sex couples whose country of origin does not allow gay or lesbian marriages.
The K-1 Visa Explained | Read more
Comparing Fiancé Visa And A Marriage Green Card | Read more
What Is A Fiancé (e) K Visa?
If you are a U.S. citizen with the intention of bringing your non-native spouse into the U.S., you file a petition known as a fiancé (e) k visa application. This applies to both heterosexual and same-sex marriages.
You are required to fill a Form1-129, Petition for Alien Fiancé (e). You and your partner must get married within 90 days after he or she migrates into the U.S. After legalizing your marriage, your partner can then apply for a green card.
Are My Spouse’s Children Eligible For A Green Card Application?
Absolutely. If your partner has adopted children or brought children from a previous relationship, the United States immigration law allows them to apply for a green card visa as stepchildren of the same-sex marriage. However, the children should be below 21 years. Also, the same-sex couple should have married before the children attained 18 years of age.
My Partner Was In A Heterosexual Marriage Before. Will that Affect Their Green Card Application?
If your spouse was in a heterosexual marriage before, they need to prove the marriage was officially terminated. This involves producing legal divorce papers or death certificates. All should go well if you and your partner present this evidence.
However, being in same-sex marriage after a heterosexual union ended could create some doubt in the United States immigration interviewers. You should be ready for in-depth investigations into your partner’s previous marriage. You should also provide honest answers when called upon.
What Is The Residence Period For Same-Sex Couples Who Have Won A Green Card?
You have to live in the US for at least five years before applying to be an American citizen. This applies to green card holders in both heterosexual and same-sex marriages. As same-sex couples who have lived together in matrimony for three years, you can apply for naturalization. According to the immigration laws of the United States, it does not matter if the marriage is between members of the opposite sex or the same sex.
What Is The Residence Period Regarding Green Card Application?
The residence period is the duration a green card holder takes before applying to be a U.S. citizen. As a green card holder, you have to live with your spouse for over five years before you can apply for naturalization. However, if you maintain the same-sex marital union for three consecutive years, you are eligible to apply for US citizenship.
How To Apply For US Citizenship As A Green Card Holder
As a green card holder living in a same-sex marriage in the United States, you can apply for U.S. citizenship after your residence period elapses. You will file a form, known as Form N-400, Application for Naturalization on the United States Citizenship and Immigration Services (USCIS) website.
If you are a same-sex couple that lives away from each other for a prolonged time, it takes more time for the non-native spouse to obtain U.S. citizenship. If you live outside the U.S. for more than a year, your residence period will be reset, hence starting afresh.
Common Problems Related To Green Card Application For Same-Sex Couples
All marriage-based visa applications are scrutinized by the USCIS. However, same-sex marriages are faced with more challenges than heterosexual marriages. This is because not all countries recognize same-sex couples.
You will probably encounter the following problems when applying for a green card as a same-sex spouse:
Lack of Proof for Relationship with Spouse’s Family
A relationship with your partner’s family is evidence that your marriage is genuine and you are not getting married for immigration purposes only. If you lack this evidence, you could experience a hard time convincing immigration officials that your marriage is authentic.
Be prepared to show a relationship with your partner’s family through family gathering photos, knowing their pet names, their birthdays, their second names, and where they live, among other things.
Lack of Shared Documents
In the United States, discrimination against same-sex couples is still common in some states. Partners in same-sex marriages fear listing their spouses as next of kin, emergency contact, or legal beneficiary. Regardless, it is advisable to list your partner as your next of kin in legal documents so that when applying for a green card, they may have evidence of marriage. These include insurance policies, property deeds, and medical records.
The Bostock v. Clayton County law brought some relief to same-sex couples who feared rejection at their workplaces based on their sexual orientation. Because of such laws, you can list your partner as next of kin in employment benefits documents.
How To Apply for A Marriage Based Green Card As A Same-Sex Couple
The green card application process for same-sex couples is similar to that of heterosexual couples. After obtaining the marriage certificate, you can now begin the process of obtaining a green card for your alien partner to come to live permanently in the United States, by following these simple steps:
1. File Form I-130, Petition For Alien Relative
The U.S. citizen spouse seeking a green card for their same-sex partner files this form to the USCIS. You will wait for up to three weeks for your application to be processed. Look out for a Notice of Action sent by USCIS to confirm they have received your petition.
2. USCIS Confirms Receipt Of Form I-130
USCIS will review your application, and if your spouse is eligible for a green card, the immigration agency approves your petition. If you did not attach the right documents to authenticate your same-sex marriage, the immigration officials might reject your petition. If unsure of what to do, it is always advisable to talk to an experienced immigration attorney who has a vast knowledge of federal law surrounding this topic.
3. File For The Green Card
A green card allows your non-native same-sex spouse to settle permanently in the United States. If you are an alien citizen and living temporarily in the U.S., you will fill the Form I-485 after your American citizen spouse’s I-130 form is approved by USCIS.
If you live outside the U.S., you will apply for a green card through the U.S. Embassy or Consulate in your country. Afterward, the U.S. Department of State will contact you to schedule an interview. Through a consulate process, you will apply for an immigrant visa within one year after your U.S. citizen spouse submits the I-130 form.
After getting the visa, you will travel to the U.S.
While in the United States, you will be granted a permanent resident status to enjoy the benefits of same-sex marriage. This process also applies to the non-native spouse’s children.
What To Expect during Green Card Application Interviews For Same-sex Couples
Interviews for same-sex marriages are not different from those of opposite-sex. So, what are some of the questions you can expect as a same-sex couple?
For couples living in the U.S., you have to attend the interviews together. These are some of the frequently asked questions meant to gauge the authenticity of your same-sex union:
• How did you two lovebirds meet?
• What are your reasons for getting married?
• Who proposed to the other?
• Why do you think the U.S. is the best place to settle and grow your marriage?
These are just questions intended to test the credibility of your same-sex marriage, and not to make you feel uncomfortable.
If you are a non-native spouse seeking an immigrant visa, you should expect the following as part of the vetting process:
1. Medical Examination
The test is carried out under the scrutiny of the State Department. Therefore, it is important to ensure that the medical specialist you seek for this examination is certified by the State Department at your country’s U.S. embassy or consulate.
2. Obtain a Valid Passport
You are required to obtain a valid passport issued by your home country ahead of the green card interview at your local U.S. embassy or consulate.
3. Biometric Identification
Before the interview, a fingerprint specialist will take your fingerprints for analysis. This ensures that your criminal record is clean. If you have a prior criminal record, especially where serious crimes are involved, it may be difficult to be granted a marriage-based green card.
4. Actual Interview
After completing the pre-interview steps at the consulate, you will be interviewed by a consulate official. Be ready for all kinds of questions during the interview. Remember, it is your responsibility to convince the State Department official that your same-sex marriage is not a shortcut to obtaining an immigrant visa to the U.S.
Take your time to prepare for these questions by researching the frequently asked interview questions and how best to answer them. Get as much information about your spouse as you can, and create a file containing relevant supporting documents.
After you convince the interviewer that your same-sex marriage is genuine, your green card petition will be approved. In most cases, the confirmation comes two to three weeks after a successful interview.
The bottom line is same-sex marriage-based green card application is not different from the heterosexual marriage process. Therefore, a same-sex married couple can, without fear, apply for immigrant visas if their spouse is a citizen of the United States. Also remember, if you are in such a situation and you need help, talk to an immigration lawyer from a reputable law firm.