Following the landmark U.S. Supreme Court ruling regarding DOMA, specifically stating that the federal government must recognize same-sex marriages that are conducted in places where it is legal, USCIS has announced that it has begun accepting and reviewing immigration visa petitions involving same-sex spouse in the same manner as those filed which involve opposite-sex spouses.
Here, we have outlined several ways that a person in a same-sex marriage or their relatives can now qualify for the Green Card (please note that any reference to “spouse” includes a same-sex spouse):
1. Spouse of A US Citizen or Legal Permanent Resident
Among the rights and privileges of being a legal permanent resident (LPR) or U.S. citizen (USC) is the ability to sponsor family members so that they can also become legal permanent residents of the U.S. The Form I-130, Immigrant Petition for Alien Relative is the most often used method by foreign national relatives of U.S. Citizens and Green Card holders to come to the U.S. to live permanently. A USC or LPR can sponsor their spouse for the Green Card, regardless of whether it is a same-sex or opposite sex marriage. For more information about sponsoring a spouse for the Green Card, please check our previous article on the Form I-130 process.
2. Step-Children of A US Citizen or Legal Permanent Resident
Many individuals do not realize that under current immigration law, upon the marriage of two individuals, any children of either are considered equal to the natural children of the other, as long as the marriage took place before the child turned 18.
This means that if you are a USC or LPR and you marry your same-sex partner who happens to have a child under 18, that child is considered your own. Consequently, in addition to sponsoring your spouse for the Green Card, you can also file a petition on behalf of the child(ren) as well.
3. Fiancé(e) of A US Citizen
Another privilege of being a USC is the ability to sponsor one’s fiancé(e) for the fiancé(e) visa or the K-1 visa so that he or she can come to the U.S. to marry the USC. Upon issuance of the K-1 visa, the foreign national fiancé(e) must come to the US and the USC and foreign national must get married within 90 day in a state that recognizes same-sex marriage. Once married, the foreign national can file an Adjustment of Status application to obtain the Green Card. Any children under-21 of the foreign national fiancé can accompany him or her to the U.S. on the K-2 visa and can also adjust status to that of legal permanent resident.
4. Employment-Based Green Card
There are several categories of employment-based Green Cards that are open to foreign nationals, both self-sponsored and those that require the sponsorship of an employer. Generally, an employment-based Green Card applicant’s spouse and children under 21 are also eligible for the Green Card once approved. This includes the same-sex spouse and his/her children. The key is that the marriage must take place before the primary applicant’s Green Card application is approved.
5. Diversity Green Card Lottery
In 1980, the United States introduced a Visa Lottery program known as the “Diversity Visa” or “Green Card Lottery”. The purpose of the program is to promote diversity in the United States by giving citizens of countries that underuse the other Green Card routes to obtain a Green Card. Because the system is geared towards individual from countries that are not well-represented in the other Green Card categories, every year, individuals from certain countries are foreclosed from using the lottery. The spouse and children of DV winners are eligible to obtain the Green Card along with the main applicant. For spouses, the marriage must occur before the main applicant obtains the Green Card.
USCIS has announced that it will continue to update information regarding same-sex marriage and immigration benefits. We at VisaPro continue to monitor the developments in this regard and will keep our readers updated. If you are in a same-sex marriage and wish to sponsor your foreign national spouse for any immigration benefit or if want to learn more about the immigration options that are now available to same-sex couples and their family members, Contact VisaPro immediately. We will be happy to talk to you.
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