Same Sex 'Green Card Marriage' Facts

Following the United States Supreme Court's decision in United States v. Windsor to strike down section 3 of the Defense of Marriage Act (DOMA), U.S. Citizenship and Immigration Services (USCIS) has been directed to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. In the wake of the Court's 2015 Obergefell v. Hodges decision legalizing gay marriage in all states, there likely will be an uptick in green card applications among gay and lesbians.

The immigration visa application process can be tedious. For more information, you may visit FindLaw's Green Card section. Below, we will discuss several facts about same-sex green card marriage.

Petitioning for Your Spouse

As a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national, you can sponsor your spouse for a family-based immigrant visa. Your eligibility to petition for your spouse, and your spouse's admissibility as an immigrant, is determined according to applicable immigration law and can't be denied due to the same-sex nature of your marriage. You may file a Form I-130 and any required accompanying application.

Generally, the law of the place where your marriage was celebrated determines whether the marriage is legally valid for purposes of immigration. USCIS applies relevant laws to determine the validity of a same-sex marriage. The state in which you are domiciled, or in which you currently reside, doesn't determine whether USCIS will recognize a marriage as valid. You can file an immigration visa petition for your spouse even if you have moved to another state after getting married.

New Petitions and Applications

You don't have to wait to apply until USCIS issues new regulations based upon the Windsor decision. If you believe you're eligible, you can apply immediately.

Prior Petitions and Applications

Petitions or applications that were denied because of DOMA (which was overturned) will be reopened by USCIS. Such cases known to USCIS or brought to its attention will be reconsidered, including associated applications. USCIS will consider your petition without regard to section 3 of DOMA. USCIS will review information previously submitted and any new information you provide.

You won't be required to pay a fee in requesting USCIS to reopen your petition or application. However, you may choose to file a new petition or application according to USCIS instructions, including payment of associated fees.

Residency

Same-sex marriage, like opposite-sex marriage, can reduce the residence period required for naturalization. After being admitted as a lawful permanent resident, naturalization generally requires five years of residence in the United States. However, naturalization is available after a required residence period of three years if during that period you have been living in "marital union" with a U.S. citizen "spouse" and your spouse has been a U.S. citizen. In this case, same-sex marriages are treated the same as opposite-sex marriages.

Considerations

USCIS now considers all petitions and applications, including benefits eligibility, without distinguishing between same-sex and opposite-sex marriages. If you previously petitioned for your spouse and were denied due to DOMA, you can request USCIS to reopen the file at no additional charge. If you require legal assistance you can contact an immigration attorney near you.

Next Steps

Contact a qualified family law attorney to make sure your rights are protected.

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