Green cards, visas, and other immigration benefits have been a reality for same-sex marriage couples since the Supreme Court’s landmark gay rights decision in United States v. Windsor, which invalidated DOMA (the Defense of Marriage Act”). Today, thankfully, legal discrimination against LGBT immigrants is no more. Now, same-sex married couples are afforded precisely the same rights and benefits under U.S. immigration laws as are opposite-sex married couples.
The immigration lawyers at the Law Offices of Joshua L. Goldstein are strong supporters of the LGBT community. We use our considerable skills and experience to help gay, lesbian, and transgendered immigrants and their families achieve their immigration objectives.
Same-Sex Marriage-Based Green Cards And Visa Petitions
A U.S. citizen or legal permanent resident has a right to file an I-130 visa petition to sponsor his or her foreign-born spouse. To get a green card based on a sex-same marriage, you must be legally married, either in the U.S. or abroad. And you must be able to demonstrate that the legal marriage is based on a genuine, bona fide relationship.
K-1 Fiance Visa For Same-Sex Engaged Couples
If you are a gay or lesbian U.S. citizen and are engaged to be married to someone of the same gender, then you are eligible to file a fiance petition (Form I-129F). A same-sex engagement may be the basis for a fiance petition even if the U.S. citizen petitioner is a resident of a state that doesn’t recognizes same-sex marriages as legal. The holder of a K-1 fiance petition may enter the U.S. for the purposes of getting married within 90 days of entering. On the basis of the marriage, the foreign national may then file for a green card through a process called adjustment of status.
If the marriage is less than two years old at the time that USCIS approves the green card, the permanent residency will be condition. Before the expiration of the green card, the I-751 petition to remove conditions on residency must be pursued. This is true regardless of whether the marriage is same sex or not.
Employment-Based Immigration For Gay And Lesbian Spouses
Green cards through marriage are certainly not the only immigration option for same-sex married couples. Consider that:
- Diversity Immigrant Visa applicants, i.e., Green Card Lottery winners, can convey permanent residency to their same-sex married partners
- Same-sex spouses of Treaty Trader (E-1) or Treaty Investor (E-2) visas may apply for an E visa derivative status, which also allows for work permits;
- H-4 visas, a derivative status, is available for gay and lesbian individuals who wish to accompany their spouses on H-1B temporary work visas; and
- L-2 as a visa status is available for gay and lesbian spouses of L-1 visa holders.
Same-Sex Marriage And I-601 Immigration Waivers
An I-601 or I-601A immigration waiver may be necessary for gay and lesbian foreign nationals with certain problems such as criminal convictions, fraud, and unlawful presence. These waivers require a demonstration of extreme hardship to a qualifying U.S. citizen or permanent resident relative. Now that the Supreme Court has struck down DOMA, gay and lesbian married couples can use their U.S. citizen or permanent resident spouse as the qualifying relative for immigration waiver purposes.
Gay And Lesbian Marriage And Asylum
Gays and lesbians who have been granted asylum or refugee status may file an I-730 asylee relative petition to bring their same-sex spouses to the United States as derivative beneficiaries. LGBT spouses of those who are in the process of applying for asylum as principals may file applications for asylum as derivative applicants.
Same-Sex Marriage And Deportation
Gay and lesbian immigrants who are placed into removal proceedings in Immigration Court may use adjustment of status to obtain a green card through a same-sex marriage as the basis of a deportation defense. Other forms of relief in Immigration Court such as Cancellation of Removal may use same-sex married partners as qualifying relatives or may include hardship to their spouses as discretionary factors.
How Our Immigration Lawyers Can Help
As immigration attorneys for same sex couples, our ability to help gay and lesbian couples obtain green cards and other immigration benefits comes from our considerable experience with other complex immigration matters. Our immigration firm takes pride in serving as a trusted source of advice for Boston’s LGBT community. If you’re wondering what immigration options may be available to you, or if you’re looking to hire an immigration attorney to help you achieve a green card, call us today at (617) 722-0005 to schedule a consultation.