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 announced that it would begin accepting and reviewing immigration visa petitions involving same-sex spouse in the same manner as those filed which involve opposite-sex spouses.
Today, petitions filed by US citizens for their same-sex spouse are treated no differently than other family-based petitions
Here, we have outlined several ways that a person in a same-sex marriage or their relatives can qualify for the Green Card (any reference to “spouse” ` 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.
The important thing is that the marriage must be legal in the locale the marriage too place. For example, a traditional wedding ceremony that would normally be considered legal in a certain country, would also be considered legal by US immigration. However, if that country does not recognize same-sex marriage, that marriage could not be considered legal by US immigration. In this scenario, the couple would need to marry in a third country that does recognize same-sex marriage or consider the K-1 Fiancé Visa (see below).
For more information about sponsoring a spouse for the Green Card, please check our previous article on the Form I-130 process.
2. Fiancé(E) of A US Citizen
US citizens can also sponsor their fiancé(e) for the K-1 Fiancé Visa. The K-1 Fiancé Visa allows the foreign national fiancé(e) come to the U.S. so that marriage can take place here. 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 days. Once married, the foreign national should file an Adjustment of Status application to obtain the lawful permanent residence. Any children under-21 of the foreign national fiancé(e) 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.
3.Step-Children of A US Citizen or Legal Permanent Resident
A USC or LPR can file a Form I-130 for their children. Many individuals do not realize that under current immigration law, upon the marriage of two individuals, any resulting “step-children” are treated no different than “children”, 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 has a child or children under 18, you can also file a petition on behalf of the child(ren) as well.
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 as “derivative beneficiaries”. The key is that the marriage must take place before the primary applicant’s Green Card is issued.
5. Diversity Green Card Lottery
Diversity Visa Lottery or “Green Card Lottery” aims to promote diversity in the United States by giving citizens of countries that underuse the other Green Card routes a way to obtain a Green Card. The spouse and children under 21 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.
If you are in a same-sex marriage or plan to get married and wish to sponsor your foreign national spouse or fiancé(e), or if want to learn more about the immigration options that are available to same-sex couples and their family members, Contact VisaPro immediately. We will be happy to talk to you.
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