Same-sex married couples in the U. S. immigration laws have faced some positive changes for the duration of their rights and privileges regarding lawful permanent residence commonly referred to as a green card and now can apply for it as different-sex married couples.
Equality in Marriage
The following are the requirements that need to be met for the spouses of the U. S citizens, regardless of gender, to get a green card, as with most matters related to immigration, there are some issues that same-sex couples face.
Recognition of Same-Sex Marriages
Where it took place is valid for immigration purposes and being recognized is a big milestone for gay couples looking for green cards.
A Brief History
The Defense of Marriage Act (DOMA) once restricted immigration benefits to heterosexual couples. However, the U.S. Supreme Court’s decision in United States v. Windsor overturned DOMA, allowing same-sex couples to sponsor their partners for green cards. Windsor ruled it unconstitutional. This decision allowed them to apply for green cards, marking a historic shift toward equality.
Navigating the Process
To start the United States citizen spouse must file a petition using USCIS Form I-130 and both straight and gay couples must prove their marriage’s legal validity in the place where it occurred.
Legal Recognition
USCIS acknowledges and honors same-sex marriages performed in foreign countries, as long as those countries legally recognize them. However, couples in countries that do not recognize same-sex marriages may encounter additional obstacles. It is crucial to note that attempting to enter the U.S. on a tourist visa to get married is considered visa fraud and may lead to the denial of a green card. Instead, couples should explore appropriate channels for obtaining a K-1 fiancé(e) visa or an immigrant visa through a valid marriage.
Documenting Your Valid Marriage
Typically, a government-issued marriage certificate is required to prove a legal marriage. If married abroad, ensure the certificate is from a recognized government agency. To prove your green card application is legitimate, you’ll need to demonstrate your marriage is real (not just for immigration purposes). Show this with wedding photos, joint financial records, proof of living together, and children’s birth certificates (if you have them).
Civil Unions and Domestic Partnerships
U.S. law does not equate civil unions and domestic partnerships with marriage. These relationships do not simplify the green card process for foreign partners. In rare cases, a civil union or domestic partnership may be recognized as a common-law marriage if it was formed in a jurisdiction that recognizes them. However, such recognition is uncommon.
Same-Sex Fiancé and Fiancée Visas
U.S. citizens can apply for a K-1 fiancé(e) visa for their foreign-born same-sex partners. This visa allows the fiancé(e) to spend 90 days in the U.S., during which the couple must marry. After marriage, the foreign spouse can apply for “adjustment of status” to obtain lawful conditional residence. The requirements for a K-1 visa for same-sex couples are the same as for different-sex couples, including evidence of genuine intent to marry and proof of meeting in person within the last two years.
Additional Resources
For more detailed information, consult Nolo’s guide on Fiancé & Marriage Visas and the USCIS online policy manual for spouses of U.S. citizens. Nolo also offers resources on marriage-based green cards, covering the topics discussed here in greater detail.
In conclusion, while navigating the green card process as a same-sex couple involves understanding legal recognition and documentation requirements, with the right guidance, you can successfully pursue lawful permanent residence in the United States.
