Following the U.S. 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 same-sex couples.
The immigration visa application process can be tedious. Below, we 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're 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.
Same-Sex Green Card Marriage: 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.
Green Card Marriage and Same-Sex Couples: 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.
Get Professional Help With Your Same-Sex Green Card Marriage
Although marriage equality is now the law of the land, there may still be some confusion about prior petitions that were denied or other administrative hurdles. Working with an attorney, especially one with experience helping same-sex couples get green cards, can help clear up the confusion. Get started today and contact an experienced family law attorney near you.