Same-sex couples must be treated equally under U.S. immigration law thanks to the U.S. Supreme Court's ruling in the United States v. Windsor (2013) case, striking down the Defense of Marriage Act(DOMA). Even further, in 2015, the Supreme Court ruled in Obergefell v. Hodges that every state be required to issue marriage licenses to same-sex couples. Following both Supreme Court rulings, gay marriage is legal in every U.S. state.
Accordingly, the United States Citizenship and Immigration Service (USCIS) will view same-sex marriages the same as opposite-sex marriages in deciding on family green card applications. USCIS will not factor in the spouses' genders or biological sexes in making visa application decisions. Same-sex spouses of U.S. citizens and lawful permanent residents are welcome to apply for marriage green cards, just like heterosexual couples. However, gay and lesbian couples do face some unique challenges in applying for a marriage green card. This article discusses these challenges and explains how to address them.
Can Same-Sex Couples Apply for Marriage Green Cards?
Yes. Your same-sex spouse can apply for a marriage green card as long as you are a U.S. citizen or lawful permanent resident. A green card will give your spouse the right to live and work in the United States and also apply for citizenship (through naturalization) in the future and receive federal benefits.
The path your immigrant spouse follows to apply for a same-sex marriage green card depends first on where they live. If your spouse lives outside the United States, they will apply from their country of origin in a process called consular processing. If your immigrant spouse already lives in the United States, they can apply for an adjustment of status. If you're a U.S. citizen, your immigrant spouse can file all the forms at the same time in a concurrent application. If you're a green card holder, though, your spouse has to file their forms over time in a particular order - this is called a non-concurrent application.
What are Some Common Challenges Same-Sex Couples Face in the Green Card Application Process?
To qualify for a marriage green card, married couples must show, among other things, (1) that they have a bona fide relationship, and (2) that their marriage is legally valid. Although all couples must satisfy these requirements, they can create special challenges for same-sex couples. In addition, same-sex couples often wonder whether the USCIS officer overseeing their case will be biased. We address these concerns below.
How to prove a bona fide relationship
For same sex couples, the hardest part of getting a marriage green card can be proving that you have a “bona fide relationship. A “bona fide relationship” simply means that you have a genuine relationship with your spouse. You’ll have to prove that your relationship with your spouse is based on mutual affection and that you plan to build a life together. In applying for a marriage green card, Heterosexual couples often prove they have a genuine relationship based on evidence of their knowledge of their spouse’s parents, letters from co-workers who have seen the couple together, or lease documents showing that they live together, among other things. Using these forms of evidence can be harder for same sex couples.
Your Spouse’s Knowledge of Your Parents
Generally, you should be able to answer questions about your spouse’s family during your permanent residency (green card) interview. So not knowing any of your spouse’s family members can be a problem. Unfortunately, homophobia remains prevalent in America so many gay couples cannot introduce their spouse to their family.
If your immigrant spouse hasn’t met your parents, they won’t be able to answer detailed questions about your parents at the interview. At a minimum, though, your spouse can learn basic information about your parents, like “what are their names?” or “how old are they?”
Proving Cohabitation without Employment or Lease Documents
Often, marriage green card applicants can prove they have a bona fide marriage by showing they have a joint lease with their spouse or that they listed their spouse on emergency contact or insurance documents with their employer. This might not be so easy for same-sex couples. If you live somewhere where housing discrimination is common, you might only have given your landlord one of your names when you signed your lease. Maybe you’re afraid your employer will discriminate against you if they learn of your sexual orientation, so you don’t list your spouse as your emergency contact and never bring them to company parties.
These are reasonable reactions to legitimate fears of discrimination, but they can also raise red flags to immigration officials. Officials can’t tell from your application alone whether you lack these documents because of real fears of discrimination or because the marriage is a sham. But you can often overcome this challenge by showing other proof that you live together and share financial assets. For example, you can submit an electric bill with both of your names on it or statements from joint bank accounts or joint credit cards. You can also show proof that you are the beneficiaries of each other’s life insurance policies.
Proving that you live together and share your finances will go a long way towards proving you married for love and not for immigration purposes.
How to prove a legally-valid marriage
In addition to proving that you have a bona fide relationship with your partner, you also have to show that your marriage is legally valid in the place where you were married. For same-sex couples, this means you were married in a country that doesn’t prohibit same-sex marriage. If you got married in India or in one of the several Mexican states that don’t allow same-sex marriage, then you won’t be able to prove a legally valid marriage. On the other hand, there are currently 29 countries where same-sex marriage is legal, including the United States.
Before same-sex marriage was legal throughout the United States, some states allowed same-sex couples to enter “civil unions.” While civil unions have many of the same benefits as marriage, they do not have any immigration benefits. For immigration law purposes, a couple in a civil union is the same as an unmarried couple. You’ll have to get married first before you can apply for a marriage green card. If you need a fiancé visa to get married in the United States, check out our Fiancé Visa Filing Guide.
Concerns about possible bias with USCIS officers
As part of the application process, an officer at the U.S. Citizenship and Immigration Service (USCIS) will conduct your green card interview. The law requires them to treat same-sex couples with the same dignity and respect as opposite-sex couples. And immigration officials go through sensitivity training on LGBTQ equality.
But human beings often have conscious or unconscious biases. So many same-sex couples fear that they’ll be interviewed by an immigration officer with an anti-LGBTQ bias. While this is certainly possible, there are very few documented cases of officers denying green card applications because of anti-LGBTQ discrimination. When you go into your marriage green card interview, the law is on your side.
How Will a Previous Heterosexual Marriage Affect my Same-Sex Green Card Application?
You won’t automatically have a problem just because you were married to an opposite-sex partner in the past. There are, however, two possible problems to be aware of. First, you will need to show that any previous marriages have ended, either by death, divorce, or annulment. If either you or your spouse was married before—whether in a same-sex or opposite-sex marriage—you’ll need to give the U.S. Government proof that it ended, such as a death certificate or a divorce decree from a judge.
Second, you might run into problems if you or your spouse applied for a green card through a prior heterosexual marriage. U.S. immigration laws are concerned about “marriage fraud;” the practice of a U.S. citizen or green card holder marrying a foreign national, not for love, but for immigration benefits. Your interviewer might ask questions to see if your current marriage is a sham. If either of you applied for a green card through a previous heterosexual marriage, your interviewer will likely ask you questions about whether your prior marriage was just a sham to get immigration benefits.
If you do face questions about marriage fraud, be prepared to clearly and truthfully explain that both your current same-sex marriage and your previous opposite-sex marriage were based on genuine relationships rather than immigration benefits. In addition, you should include documents with your green card application showing that you intended to build a future with your prior spouse. For example, you could submit a shared lease document or shared bank account statements with your prior spouse to show your relationship was real. If your case is especially complicated, you might consider contacting a local legal aid organization or speaking with an immigration lawyer.
Can I Apply for a K-1 Fiancé Visa for my Same-Sex Partner?
You need to have a legally valid marriage to get a marriage green card. Unfortunately, several countries still prohibit same-sex marriage. If you are a U.S. citizen and your immigrant partner lives in a country that prohibits same-sex marriage, they can apply for a Fiancé Visa (called a K-1 Visa) to come to the United States to marry you. Then, they can apply for a marriage green card based on your legally valid U.S. marriage.
Applying for a marriage green card can be complicated, but working with a good immigration attorney can make it easier. If you can't afford the attorney fees and don't want to handle your marriage green card case alone, we may be able to help. If you are eligible, you can use ImmigrationHelp.org to prepare your green card forms for free. Click "Get Started" to see if ImmigrationHelp.org can help you.