Marriage-Based Green Cards for Same-Sex Couples

A marriage-based green card offers legal residency to spouses of U.S. citizens. Historically, same-sex couples did not receive the same rights. This has changed, and same-sex marriages now hold the same legal weight as a traditional couple.

Same-sex couples can navigate the complex immigration system with newfound hope and equality. The process involves documentation, interviews, and legal scrutiny. Understanding the ins and outs of the process matters, and clear guidance simplifies the journey. This article provides insights and tips for same-sex spouses seeking a green card.

A Brief History of Same-Sex Marriages and U.S. Immigration

The repeal of the Defense of Marriage Act (DOMA) seismically shifted the landscape of same-sex marriage in the United States. This pivotal moment in history cleared the path for federal recognition of same-sex marriages, which, in turn, significantly impacted U.S. immigration law.

Prior to this, same-sex couples were in legal limbo. Federal entities, including immigration services, did not acknowledge their marital status. The repeal of DOMA has since allowed same-sex couples to enjoy the same immigration benefits as opposite-sex couples, provided they meet the established criteria.

Eligibility Criteria for Same-Sex Couples

To be considered for immigration benefits, a same-sex marriage must be legally performed and valid in the place of celebration. This requirement means that even if the couple resides in a state or country that does not recognize same-sex marriage, they can still be eligible for U.S. immigration benefits if their marriage was valid where it took place.

Application Process for Marriage-Based Green Cards

Required Documentation and Forms

The cornerstone of this process is the Petition for Alien Relative. This form establishes the marital relationship.

Accompanying Form I-130, applicants must submit a slew of supporting documents, including but not limited to:

  • a valid marriage certificate
  • joint financial statements
  • evidence of a bona fide marriage.

These documents collectively portray the genuine nature of the marital union. Legal validity is a critical aspect that immigration authorities thoroughly scrutinize. Ensuring that all paperwork is complete and accurate is the first step toward a successful application, and it sets the tone for the entire green card process.

Interview and Biometrics

The interview process with the United States Citizenship and Immigration Services (USCIS) is a pivotal stage in obtaining a marriage-based green card. Couples are often anxious about this step. It involves personal questions designed to verify the authenticity of their marital relationship. Such questions can range from the history of their relationship to daily routines and future plans.

Additionally, applicants must attend a biometrics appointment, where fingerprints and photographs are taken for background checks. This biometric data is crucial for confirming the applicants' identities and ensuring they pose no security risk to the country.

Challenges for Same-Sex Couples Seeking Marriage Green Cards

Non-Recognizing Countries

In a same-sex couple, one partner may hail from a country that does not recognize same-sex marriage. These couples must navigate a complex landscape where their union may be legally invisible in their home country. This invisibility can lead to difficulties in obtaining necessary legal documents, or it could lead to outright discrimination.

Presumptions of Fraud

For same-sex couples, proving the legitimacy of their marriage can be daunting. They may encounter skepticism and presumptions of fraud.

To overcome such challenges, couples must present a well-documented case that showcases the genuine nature of the relationship.

Proving the legitimacy of your relationship can include evidence of:

  • Joint travel
  • Cohabitation
  • Shared financial responsibilities
  • Affidavits from friends and family

Demonstrating the depth and duration of the relationship is crucial in dispelling doubts and convincing immigration officers of the marriage's authenticity. Preparation and transparency are the best defenses against any presumption of fraud.

Legal Rights and Protections for Same-Sex Spouses

Access to Employment and Travel

With a pending or approved marriage-based green card application, same-sex spouses gain access to several critical benefits. These benefits can significantly ease their transition into life in the United States.

One of the most valuable is the authorization to work, which allows them to pursue employment opportunities without the need for a separate work visa. Additionally, they are entitled to travel permissions, which enable them to leave and re-enter the U.S. without jeopardizing their immigration status.

Rights to Appeal

In the event of a denied marriage-based green card application, same-sex couples have the right to appeal the decision. This appeals process is a critical safeguard that ensures every applicant has the opportunity to contest and rectify issues that led to the denial.

Furthermore, they can waive certain inadmissibilities that affect an application. For example, say an applicant has overstayed a previous visa. With green card benefits, they may be eligible for a waiver if they can demonstrate that denying their application would result in extreme hardship to their U.S. citizen spouse.

No matter what your family dynamics are, Hubbs Law, P.A. is here to help you obtain a green card. To meet with our team, call our office at (305) 570-4802 or contact us online.

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