In the past, the United States Citizenship and Immigration Services (USCIS) authorized only those in “traditional” marriages (heterosexual partners) to petition for a visa for their foreign-born spouse. This was because of a law called the “Defense of Marriage Act (DOMA),” which defined “marriage” as between a man and a woman. However, the U.S. Supreme Court’s decision in United States v. Windsor dictated U.S. Embassies and Consulates must adjudicate visa applications based on same-sex marriage in the same way that they adjudicate applications for opposite-sex marriages. This means that any same-sex marriage that is legally recognized in the U.S. or in the country where it took place will be treated the same as heterosexual marriages for U.S. immigration purposes. Nevertheless, same-sex couples still face unique nuances that make the process of obtaining a visa or lawful permanent residence more complex. Please continue reading to learn more about the immigration process of same-sex couples and how a dedicated Essex County Immigration Attorney can help you today.
Can I obtain a visa for my same-sex partner?
When DOMA was deemed unconstitutional, same-sex spouses of a visa applicant coming to the U.S. for any purpose, such as work, study, or as a legal immigrant, would now be eligible for a derivative visa. However, only a relationship that is legally considered to be a marriage in the jurisdiction where it took place establishes eligibility as a spouse for immigration purposes. Therefore, if you’re a U.S. citizen engaged to be married to a foreign national of the same sex, you must obtain a K-1 fiancè visa. This visa allows a foreign national to enter the U.S. to get married. After you get married, you can apply for adjustment of status for lawful conditional residence.
If you’re looking to sponsor your foreign-born spouse for a green card based on a same-sex marriage, you will have to meet specific eligibility requirements and file Form I-130, Petition for the Immigrating Spouse of U.S. Citizen. Just like a different-sex couple, you’ll have to prove that your marriage is legally valid.
What hurdles could same-sex marriages face during this legal process?
A common concern that arises for same-sex couples is if one or both of the partners were previously in heterosexual marriages. USCIS will ask you questions about your heterosexual marriage during your interview. However, this does not mean you will automatically be denied because you were previously in a heterosexual marriage. The primary purpose of this is to establish that you were not married solely for immigration purposes.
Ultimately, USCIS has broad discretion regarding granting or denying green card and visa applications. This makes many same-sex couples worry about getting biased officers who may deny their application based on their same-sex marriage. However, USCIS officers are trained and expected to carry out the law without biases. It’s beneficial to obtain quality legal representation to protect your rights and interests.
If you’re afraid of facing particular hurdles when applying for a same-sex marriage derivate visa or lawful permanent residence, please don’t hesitate to contact a determined attorney from the Law Offices of Christopher T. Howell, Esq.
