Marriage Based Green Cards for Same-Sex Couples

For centuries, immigrants have moved to the US to reunite with their spouses and families. Now each year, hundreds of thousands of individuals apply for green cards based on family petitions. However, it was just over a decade ago that US immigration law began to recognize same-sex marriages and allow those families to petition for green cards. Thanks to a landmark Supreme Court ruling in 2013, same-sex couples can now obtain marriage-based green cards and set up lives together in the US, just like opposite-sex couples.

Marriage-Based Green Cards Overview

US citizens and lawful permanent residents have the right to petition for their immediate relatives, including their spouses, to obtain a green card. Marriage-based petitions are a common way for immigrants to be granted lawful permanent residence and live with their partners in the US.

To be eligible for a marriage-based green card, applicants must prove that they have a legal and legitimate marriage to a US citizen or lawful permanent resident. The applicant and their spouse may not be married to anyone else.

In order to obtain a marriage-based green card for their spouse, petitioners must submit Form I-130, “Petition for Alien Relative.” Then, applicants legally living in the US may apply for Adjustment of Status through Form I-485. Applicants outside of the US will have to apply through a process called consular processing via a US embassy abroad. Finally, applicants may be required to attend a green card interview before approval.

Can Same-Sex Couples Obtain Marriage-Based Green Cards?

USCIS recognizes all legally valid marriages, regardless of sexuality. This means that same-sex couples can obtain marriage visas the same way that opposite-sex couples can.

This policy is a result of the Supreme Court case United States v. Windsor (2013). Previously, the Defense of Marriage Act prohibited the federal government from recognizing same-sex marriages, including for immigration matters. The Windsor case struck down this law and allowed for same-sex marriages to be treated equally for purposes of immigration.

Challenges for Same-Sex Couples Seeking Marriage Green Cards

While the marriage-based green card application and approval processes are the exact same for same-sex and opposite-sex couples, same-sex couple might face some additional barriers.

Legally Valid Marriages

US immigration law only recognizes marriages that are legally valid in the place they took place. This means that same-sex couples cannot have wed in a country where same-sex marriages are not legal. Additionally, couples must have an official marriage. Prior to Obergefell v. Hodges and the legalization of same-sex marriage nationwide, some states allowed same-sex couples to enter “civil unions” rather than marriage. These unions, whether granted in the US or abroad, are not recognized for the purpose of marriage-based immigration.

Proving a Genuine Relationship

Immigration officers want to be sure that green card applicants are in a genuine relationship and not simply married for the purpose of immigration benefits. For that reason, applicants must provide evidence to demonstrate the authenticity of their relationship.

Many applicants prove their relationship by submitting joint leases or documents from their employers that list their partner as a contact or beneficiary. However, in situations where queer individuals fear housing or employment discrimination, they might not always include their partner on such documents. In these cases, applicants should use other documents that attest to their relationship, such as joint utility bills, ID cards or documents showing the same address, joint bank statements, or life insurance policies.

Another typical marker of a genuine relationship is a partner’s familiarity with their in-laws. Applicants often submit family photos or correspondences between them and their partners’ relatives. During interviews, officers almost always ask about the interviewee’s in-laws. However, when families are not accepting of same-sex relationships, this kind of evidence can be hard to provide. Applicants who find themselves in this situation should be honest about the reasons they are not close with their partner’s family during their interview.

Bias

Some same-sex couples might fear discrimination by immigration officers during their interview or application process. While officers go through LGBTQ sensitivity trainings, all humans have some level of unconscious bias. Still, applicants should remember that officers are required by law to treat same-sex couples equally, and few cases of anti-LGBTQ discrimination during green card approval have been reported.

Benach Collopy Can Help.  Of the Community. For the Community.

While same-sex marriages are currently protected in the US and recognized by immigration law, applying for green cards as a same-sex couple can be scary. At Benach Collopy, we understand the unique challenges queer individuals face when dealing with immigration matters. Our attorneys have a wealth of experience in advocating for LGBTQ clients and can help secure green cards for same-sex spouses. For questions or to set up a consultation today, call 202-644-8600.