How does the fall of DOMA affect bi-national lesbian couples and how can you benefit? Here is an up-to-date guide.
As the first anniversary since the fall of the Defense of Marriage Act (DOMA) approaches, it is a good time to reflect on how far U.S. immigration laws have progressed in the last twelve months – extending the reach of its benefits to LGBT couples.
United States v. Windsor
The Defense of Marriage Act was a United States federal law that was enacted in 1996. DOMA restricted the scope of federal benefits and also restricted inter-state marriage recognition only to opposite-sex marriages in the United States. Among these restrictions was the denial of any federal immigration benefits to same-sex couples, including the right to sponsor a foreign spouse or fiancé for residency or a visa.
On June 26, 2013, the United States Supreme Court issued a landmark case, United States v. Windsor, which had a direct impact on federal immigration rights for LGBT couples. In Windsor, the Supreme Court heard oral arguments regarding a challenge of the federal government’s denial of benefits and tax advantages to legally married same-sex couples under DOMA. After hearing oral arguments, the Supreme Court struck down DOMA and ruled that it was unconstitutional – thus entitling married same-sex couples to the same federal benefits as traditional couples.
DOMA’s Effect on U.S. Immigration Laws
Since DOMA was struck down, federal immigration benefits previously afforded only to traditional married couples were instantly extended to LGBT couples. As of June 26, 2013, a U.S. citizen or legal permanent resident in a same-sex marriage may sponsor the foreign spouse for U.S. residency – also known as a green card. The USCIS requirements, criteria, and standards for adjudication are the same for same-sex petitions as they are for opposite-sex petitions.
What Should You Do If You Want to Apply for a Green Card?
Get married. The right to sponsor a spouse for a green card does not apply until you are legally married in a jurisdiction that permits same-sex marriages. Some countries such as Canada permit those in common law relationships to sponsor a foreign partner for residency. However, the United States limits this right to immediate relatives, including those who are legally married.
As of the time of this publication, the following states permit same-sex marriage: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia. Countries that permit same sex marriage include: Argentina, Belgium, Brazil, Canada, France, Mexico, New Zealand, Spain, and Sweden.
Document your relationship. You should start gathering evidence that proves that your relationship is genuine and bona fide. This may include photographs of the two of you over the course of your relationship (i.e., vacations, holidays, etc.), evidence of commingling of assets (i.e., joint bank accounts, insurance, etc.), and support letters from family or mutual friends. Just about all petitions will require both spouses to attend an in-person interview with a USCIS officer, who will make a determination as to whether the marriage was bona fide and entered into in good faith.
Decide how you want to apply for a green card. Generally, a foreign spouse can obtain U.S. residency through one of two ways: adjustment of status or consular processing. Adjustment of status applies to foreign nationals who are in the United States in legal status (i.e., student visa or work visa). Consular processing applies to foreign nationals who are residing outside the United States or who are otherwise not in legal status in the United States.
Check for inadmissibility. To qualify for U.S. residency, the foreign spouse must not be inadmissible. This means that he or she must not have a criminal conviction, overstayed a previous visa, or has been banned from the United States.
Contact an immigration attorney. An experienced immigration attorney can navigate you through the process and assist you in spotting any potential issues by the USCIS.
FAQ’s
Are LGBT couples eligible for a K-1 fiancé visa? Yes – a U.S. citizen who is engaged but not married to a foreign partner may sponsor the foreign partner for a K-1 fiancé visa. The couple must have met each other in person at least once in the two years preceding the application unless doing so would violate a cultural/social practice or result in extreme hardship. Once approved, the foreign partner can enter the United States and the couple must marry within 90 days. The foreign spouse can then adjust his or her status while remaining in the United States.
Can a U.S. permanent resident sponsor a foreign spouse for a green card? Yes – both U.S. citizens and permanent residents can sponsor a foreign spouse for a green card. The eligibility requirements are the same in both instances, with the primary difference being that priority dates are current for spouses of U.S. citizens, whereas priority dates may or may not be current for spouses of U.S. permanent residents. In other words, a green card will be immediately available for the spouse of a U.S. citizen, whereas there may be a wait for spouses of permanent residents.
What is the difference between conditional residency and permanent residency? All marriage-based green cards are conditional for the first two years. The green card holder is accorded all of the same rights, benefits and freedoms with the caveat that the couple must jointly file to remove the condition during the 90-day window prior to the two-year anniversary of receiving the green card. The policy behind the two-year condition is to act as a safeguard against marriage fraud. Once the condition is removed, he or she goes from “conditional resident” to “permanent resident.”
When can I naturalize as a U.S. citizen? Those who obtain U.S. permanent residency through marriage may be eligible to naturalize as U.S. citizens as early three years after receiving conditional residency.
About the author
Cedric M. Shen is the founding immigration attorney at Maximilian Law Inc., and an advocate of LGBT rights. He has helped many same-sex couples obtain green cards since DOMA was repealed. Mr. Shen can be reached at (310) 591-8200 or via email at [email protected].