Same-Sex Immigration Benefits

Same-sex couples can now obtain U.S. immigration benefits based upon their family relationship.  The U.S. government’s implementation of practices and policies allowing same-sex couples to gain immigration benefits have led to many questions concerning the exact procedure and policy of each U.S. government entity.  The following is a brief overview of many of the immigration questions facing same-sex couples.

If you have further questions concerning the process, please contact the firm to have your questions answered.

Background of Same-Sex Immigration Benefits Law

Until June 2013, same-sex couples could not obtain any U.S. immigration benefits based upon their relationship.   However, soon after the Supreme Court decision striking down the Defense of Marriage Act (DOMA), the U.S. government agencies dealing with immigration started to change their policies to reflect the change in the law.   Currently, same-sex couples are basically treated the same as heterosexual couples.  However, some issues remain.

Same-Sex Immigration Frequently Asked Questions

Can a U.S. Citizen Sponsor His or Her Same-Sex Spouse for Permanent Residency?

Yes.  It is now possible for same-sex, married couples to apply for permanent residency and the green card.  The application can be filed whether the couple is in the United States or outside of the United States.  The process is the same as for all other married couples, and is fully explained on the firm’s marriage visa webpage.

Can a U.S. Citizen Sponsor His or Her Unmarried, Same-Sex Partner for Permanent Residency?

Unfortunately, the United States does not provide any family-based immigration benefits for couples who are in a relationship, but do not wish to get married.  However, one option available to unmarried, same-sex couples is the fiancee visa.  The fiancee visa allows a foreign national who is engaged to a U.S. citizen to enter into the United States if the couple agrees to marry within 90 days of the enterance into the United States.

Thus, the fiancee visa is a means by which a U.S. citizen and foreign national same-sex couple may enter the United States if they temporarily reside in a location that does not allow same-sex marriage.

What if the Couple Lives Someplace that Doesn’t Recognize Same-Sex Marriage?

A married couple’s eligibility for immigrant benefits does not change based upon where they live.   The determining factor is whether the couple married in a place recognizing same-sex marriages.  For example, a same-sex couple who gets married in New York City (a place that recognizes same-sex marriages) can apply for the marriage visa even if they live in Texas (a place that does not recognize same-sex marriage).   Likewise, it does not matter if a couple lives in a country that does not recognize same-sex marriages, if the couple was legally married, the couple can apply for immigration benefits in the United States.

Does It Matter Where a Couple Currently Lives to Determine Same-Sex Immigration Benefit Eligibility?

No.  The major issue of importance is if a couple had a same-sex marriage in a location that recognizes same-sex marriages.

Does It Matter Where a Couple will live in the United States?   Does the State of Residency have to Recognize Same-Sex Marriages?

Same-sex couples can live anywhere in the United States.  The couple’s immigration benefits are not impacted in any way by where they live (or will live) within the United States.  For immigration benefits, it is not necessary to live in a state that recognizes same-sex marriages.

Can a Nonimmigrant Visa Holder Obtain Immigration Status for His or Her Same-Sex Spouse?

Yes.  Nonimmigrant visa status holders can obtain immigration status for their legally married spouses.  By “legally married,” the firm means any marriage that is recognized in the location in which it occurred.   Common nonimmigrant spousal visa categories include the H-4, L-2, F-2 and J-2s.

Does It Matter If a Same-Sex Immigration Applicant Was Once In A Heterosexual Relationship?

No.  A same-sex marriage immigration applicant is not disqualified if they have previously had a heterosexual relationship.   The only standard that is relevant is whether or not the applicant is in a good faith relationship with his or her spouse.  Although it is possible that an adjudicator may question an applicant about previous relationships, having previously been in a good faith heterosexual relationship should in no way limit an applicant in a same-sex marriage immigrant application.

Are There Different Standards For Same-Sex Couples Than Heterosexual Couples?

No.  There is no difference between the standards for determining the validity of a same-sex marriage and a heterosexual marriage.  In both instances, a couple must demonstrate that they are in a good faith relationship.