LGBT COUPLES

With the decision of the U.S. Supreme Court to find Section 3 of the Defense of Marriage Act (DOMA) unconstitutional on June 26, 2013, the only impediment to filing applications for lawful permanent residence for noncitizen same-sex spouses was lifted. This made it possible to file immigration benefits for LGBT, bi-national couples. Shortly after the Supreme Court decision was issued, DHS and State Department began implementing the ruling to ensure that “all married couples will be treated equally and fairly.”

As with all marriage-based adjustment of status cases, all couples must demonstrate their marriage is real and not an instance of “marriage fraud.” The petitioner has the burden of showing that the marriage was entered into in good faith and not for the purpose of gaining immigration benefits.

Marriages must be officiated in states and countries that allow for same-sex marriages. Regardless of where the couple resides at the time of filing, their marriage will be recognized as legal and valid for immigration purposes if and only if they were married in a state or country that recognizes the marriage.

Below is the list of immigration benefits LGBT couples may now apply for.

Green card processing based on a family-based visa petition

With the end of DOMA, U.S. citizens and Lawful Permanent Residents may now file immigrant visa petitions (Form I-130) for their same-sex spouses. Once approved, these petitions will their spouses to apply for Adjustment of Status (or immigrant visas) and obtain green cards or Lawful Permanent Resident Status. Read our family based petition article for more information about the process and requirement.

Unfortunately, there are also a few negative consequences for gay and lesbian non-citizens who were seeking to obtain status through the family preference system. Specifically, non-citizens with lesbian or gay spouses, who previously qualified as “unmarried sons and daughters” of U.S. citizens, (under the F1 category) because their marriage was not recognized under U.S. law, will now be considered married sons and daughters under the F3 category, which has a much longer waiting period. This assumes their marriage was legal at the place of marriage. Similarly, non-citizens who were under DOMA, and were considered unmarried sons and daughters of Legal Permanent Residents (under the F2B category) will no longer be eligible for a family preference visa, as Legal Permanent Residents are not able to sponsor a married son or daughter.

Derivative beneficiaries on IMMIGRANT visa applications

Under DOMA, same-sex spouses could not be added as derivative beneficiaries and apply for Asylum, Adjustment of Status, Consular Processing, or Non-Immigrant visas based on a status accorded to their spouses. Now, this is no longer the case. Same-sex spouses can be included as derivative applicants along with their spouse’s application. For example, if a foreign national has a pending application under the F1 category that was filed on their behalf by their U.S. citizen parent, the application now would be automatically converted to an F3 category petition if the beneficiary is in a legal same-sex marriage. Also, this means once the beneficiary’s priority date becomes current, they could include their spouse as a derivative on their immigrant visa application.

Similarly, whereas in the past, dual foreign national couples (where both spouses are non-citizens) were unable to come to the United States as principal and derivative beneficiaries on the same family or employment-based visa petition, they can now come with the principal applicant as the derivative spouse

Cancellation of removal requiring a qualifying relative

Gay and lesbian non-citizens are now eligible to apply for relief from removal that is dependent on the existence of a marriage to a USC or LPR, such as cancellation of removal.

Waivers

In most cases, individuals who entered the United States without being admitted or paroled are not eligible to adjust status. These individuals must leave the United States and pursue an immigrant visa through Consular Processing. However, because many of these individuals will have accrued unlawful presence, departing the United States will likely trigger a 10 year bar to their return.

There are waivers available for spouses of U.S. Citizens and permanent residents who can show that their American spouse would suffer extreme hardship without their physical presence. In addition, hardship for lesbian and gay married couples may be bolstered by evidence similar to that which is submitted in asylum applications – if there are reports of persecution or extreme discrimination against LGBT people in the non-citizen spouse’s home country

VAWA self-petition

Victims of domestic violence can now file a VAWA self-petition even if their marriage was a same-sex marriage, as long as their marriage was legal and valid.

Applying for Children

With the end of DOMA, U.S. Citizen or permanent resident spouses may now petition for the biological children of their spouse as step-children. Where the couple planned to have a child together, both parents will probably see themselves as parents, rather than step-parents, but under the immigration law, a non-biological parent who is married to the child’s biological parent is considered a step-parent so long as the marriage took place before the child turned 18.

Fiancé(e) visas

If the non-citizen is outside the United States, a U.S. Citizen may petition for a K-1 fiancé(e) visa for their partner. The visa is only available to individuals who are coming to the United States in order to get married.

The couple must show that they have a bonafide intention to marry and are legally able to marry. If the petitioner resides in a state that does not celebrate marriages for same-sex couples, it is important to provide details regarding the couple’s plans to marry in a jurisdiction that has marriage equality and to attach any documentary evidence to support this (e.g., contract with a venue for the ceremony, travel itinerary, etc…).

Filing for Any Immigration Benefit

If you or someone you know is interested in applying for immigration benefits or relief, please give our office a call today. We will help you determine your best strategy to avoid delays and improper denials. There is a lot of misunderstanding and misinformation regarding the overturn of DOMA and its effects on U.S. immigration laws. It is essential that you do your research and consult with the best immigration attorneys to help you with your case. Our office has been very successful with our applications based on LGBT marriages and we will be very happy to assist you with yours.