Do I Qualify for Family-Based Immigration Benefits Based on My Same-Sex Marriage?
Yes. There is wonderful news if you are a member of a same-sex couple who is seeking to qualify for a visa, permanent resident green card, or other family-based immigration benefits. In 2013, the Supreme Court in The United States v. Windsor struck down a section of the federal Defense of Marriage Act (DOMA) that narrowly defined marriage as only a union between a man and a woman. Now, as a same-sex married couple you will be treated exactly the same as a heterosexual couple for the purpose of immigration. The Court held that otherwise, it would be an unconstitutional deprivation of your protected liberty interests under the Fifth Amendment of the U.S. Constitution.
This means that if you are a U.S. citizen, you may now sponsor your same-sex spouse and stepchildren for family-based immigrant visas by filing Form I-130. Additionally, if you are the same-sex spouse of a child or sibling of a U.S. citizen, you may also qualify for derivative immigrant status. The USCIS has been directed to treat a same-sex marriage as equal to a heterosexual marriage in relation to all immigration benefits.
How do I File a Petition Based on My Same-Sex Marriage?
To file a petition based on a same-sex marriage, you need only to include all the same initial evidence and documentation that would be necessary for an opposite-sex marriage. It is possible, however, that more evidence or documentation may be requested of you because of how recent these changes in policy have been made.
What if I Have Previously Filed a Petition as “Single” Before Same-Sex Marriages were Recognized?
If you filed an immigration petition as “single” and were in an unrecognized same-sex marriage before the recent Supreme Court rulings and changes in immigration policy, USCIS has clarified that they will not consider that you have misrepresented your status. You may now file a new immigration petition or adjustment in status petition based on your same-sex marriage.
What if My Previous I-130 Application based on Same-Sex Marriage was Denied?
USCIS has recently attempted to identify and reopen previously denied cases based on same-sex marriages before the recent groundbreaking Supreme Court cases. If you believe your I-130 has been denied based on an unrecognized same-sex marriage, you can speed up this process by notifying the agency that your I-130 is eligible for reopening. You may also be able to submit additional evidence and documentation.
Will My Civil Union or Domestic Partnership be Recognized as a Marriage for Immigration Purposes?
Likely not. Currently, civil unions performed in the U.S. are not considered marriages for immigration purposes, and there is no guidance on civil unions or domestic partnerships performed in other countries. It is likely that anything other than a same-sex marriage legally recognized in the jurisdiction where it is performed will suffice for immigration filing purposes.
Will My Same-Sex Marriage Receive Extra Scrutiny as a Possible “Sham Marriage?”
Presumably no. As a same-sex couple you must enter into a bona fide marriage under the same preconditions as a heterosexual couple, and your marriage will receive exactly the same level of scrutiny as an opposite-sex marriage. However, as a same-sex couple it may be more difficult or challenging for you to produce the same kind of paper trail documenting your relationship as for an opposite-sex couple. If you are called in for an interview and have any difficulties documenting your bona fide same-sex marriage, you should seek the counsel of an experienced attorney.
It is also important to remember, that if your marriage occurred within the past two years, your foreign spouse will be granted permanent resident status on a conditional basis, exactly the same as for an opposite-sex couple. Since the recognition of same-sex marriage is relatively new, this may apply to you if your marriage occurred within the past two years.
Are U.S. Consulates and Embassies Now Accepting Visa Applications Based on Same-Sex Marriage?
Yes. Your same-sex marriage application at a U.S. embassy or consulate will be handled in the same way as an opposite-sex spousal application. To qualify, your same-sex marriage must occur in a jurisdiction where it is valid and legally recognized. There is no need for your home country where the U.S. embassy or consulate is located to recognize same-sex marriages, so long as the jurisdiction where you were married recognizes them.
What if I Am Afraid of Facing Persecution or Violence in My Home Country?
It is an unfortunate fact that some immigrants may be afraid or unable to travel to their home country out of fear of government, community, or family persecution and violence based on their sexual orientation. If you have safety concerns about appearing in your home country for the visa application or interviews, USCIS has issued procedures for you to request a change in venue to an alternate country. Your fear of persecution or violence based on your sexual orientation need not rise to the level required for an asylum-seeker.
Can I Apply for Immigration Benefits as a Transsexual Spouse?
Likely yes. Again, the key factor is whether your marriage was legally recognized and valid in the jurisdiction where it occurred. The local jurisdiction may recognize your marriage as a same-sex marriage, or it may recognize your marriage as an opposite-sex marriage if it has legally recognized your change in sex. This is an area of law that has evolved rapidly in the past few years, and varies greatly depending on jurisdiction, and an experienced, knowledgeable, and sensitive attorney may be necessary if questions arise.
How To Contact Us:
If you have an immigration matter or need representation in any process, please contact one of our experienced immigration lawyers at The Law Firm of Shihab & Associates, Co., LPA or call us at 877-479-4USA for a consultation. We offer decades of experience in family immigration, fiancé visas, green cards, permanent residence and much more.