In late June 2013, the U.S. Supreme Court held that the Defense of Marriage Act (DOMA) was unconstitutional. DOMA only recognized marriages for purposes of federal benefits that were heterosexual. As a result of this decision, for the first time, Lesbian and Gay marriages can now serve as a basis to sponsor a spouse for a green card or permanent residency under federal U.S. immigration law. But this is not the only area of immigration law that is positively affected by this change. Call Chicago Illinois Immigration lawyer Toma Makedonski for a free consultation. 

What Are Some Common Challenges Same-Sex Couples Face in the Green Card Application Process?
To qualify for a marriage green card, married couples must show, among other things, (1) that they have a bona fide relationship and (2) that their marriage is legally valid. Although all couples must satisfy these requirements, they can create unique challenges for same-sex couples. In addition, same-sex couples often wonder whether the USCIS officer overseeing their case will be biased. We address these concerns below.
How to prove a bona fide relationship

For same-sex couples, the most challenging part of getting a marriage green card can be proving that you have a “bona fide relationship. A “bona fide relationship” means that you have a genuine relationship with your spouse. You’ll have to prove that your relationship with your spouse is based on mutual affection and that you plan to build a life together. In applying for a marriage green card, Heterosexual couples often prove they have a genuine relationship based on evidence of their knowledge of their spouse’s parents, letters from co-workers who have seen the couple together, or lease documents showing that they live together, among other things. Using these forms of evidence can be more challenging for same-sex couples.

Your Spouse’s Knowledge of Your Parents

Generally, you should be able to answer questions about your spouse’s family during your permanent residency (green card) interview. Unfortunately, homophobia remains prevalent in America, so many gay couples cannot introduce their spouse to their family. So not knowing any of your spouse’s family members can be a problem.

If your immigrant spouse hasn’t met your parents, they won’t be able to answer detailed questions about your parents at the interview. At a minimum, though, your spouse can learn basic information about your parents, like “what are their names?” or “how old are they?”

Proving Cohabitation without Employment or Lease Documents

Often marriage green card applicants can prove they have a bona fide marriage by showing they have a joint lease with their spouse or listed their spouse on emergency contact or insurance documents with their employer. Proving a bona fide marriage might not be so easy for same-sex couples. Maybe you’re afraid your employer will discriminate against you if they learn of your sexual orientation, so you don’t list your spouse as your emergency contact and never bring them to company parties. If you live where housing discrimination is familiar, you might only have given your landlord one of your names when you signed your lease.

These are reasonable reactions to legitimate fears of discrimination, but they can also raise red flags to immigration officials. Officials can’t tell from your application alone whether you lack these documents because of real fears of discrimination or because the marriage is a sham. But you can often overcome this challenge by showing other proof that you live together and share financial assets. For example, you can submit an electric bill with both of your names on it or statements from joint bank accounts or joint credit cards. You can also prove that you are the beneficiaries of each other’s life insurance policies.

Proving that you live together and share your finances will go a long way toward establishing you are married for love and not for immigration purposes.

How to prove a legally-valid marriage

In addition to proving that you have a bona fide relationship with your partner, you also have to show that your marriage is legally valid in the place where you were married. A valid marriage means you were married in a country that doesn’t prohibit same-sex marriage for same-sex couples. If you got married in India or in one of the several Mexican states that don’t allow same-sex marriage, then you won’t be able to prove a legally valid marriage. On the other hand, there are currently 29 countries where same-sex marriage is legal, including the United States.

Before same-sex marriage was legal throughout the United States, some states allowed same-sex couples to enter “civil unions.” While civil unions have many of the same benefits as marriage, they do not have any immigration benefits. For immigration law purposes, a couple in a civil partnership is the same as an unmarried couple. You’ll have to get married first before you can apply for a marriage green card. If you need a fiancé visa to get married in the United States, check out our Fiancé Visa Filing Guide.

Concerns about possible bias against USCIS officers

As part of the application process, an officer at the U.S. Citizenship and Immigration Service (USCIS) will conduct your green card interview. The law requires them to treat same-sex couples with the same dignity and respect as opposite-sex couples. And immigration officials go through sensitivity training on LGBTQ equality.

When you go into your marriage green card interview, the law is on your side. But human beings often have conscious or unconscious biases. So many same-sex couples fear that an immigration officer will interview them with an anti-LGBTQ bias. While this is certainly possible, there are very few documented cases of officers denying green card applications because of anti-LGBTQ discrimination.

Possible visas available now include:* gay marriage-based immigrant visa and green card cases

* fiance visa petitions

* VAWA self-petition as an abused spouse of a same-sex USC or LPR spouse

* Following to join petitions for spouses joining an immigrant who has just received their green card through employment or another family member.

* Derivative beneficiaries of same-sex visa holders will also have more options (H-4 for the spouse of an H-1B visa holder, for example).

* I-601 10-year bar, misrepresentation, and criminal waivers of inadmissibility that need a qualifying spouse as a relative to apply;

* Visas for step-children created by gay marriages

How the K-1 Visa Works for Same-Sex Couples

The K-1 nonimmigrant visa permits the foreign-citizen fiancé(e) to enter the United States to marry their U.S. citizen fiancé(e). Both partners must be legally free to marry after the petition is filed. The marriage must also be legal in the U.S. state where the union will occur, and the foreign-citizen fiancée and their U.S. citizen sponsor must have met in person within the past two years.

Note: USCIS recognizes cultural or other barriers to this requirement, and an exception may be granted.

Immigration Forms for K-1 visa applications:

  • Form 129F, Petition for Alien Fiancée
  • Form DS-160, Nonimmigrant Visa Application
  • Form I-134, Affidavit of Support
  • Form I-864, Affidavit of Support Under Section 213A of the Act

Not all documents are required for every applicant. Consult an Orange County, California flat low, fee Immigration attorney.

K-1 Visa Process

The U.S. citizen sponsor must file Form 129F, Petition for Alien Fiancé(e). Once approved by USCIS, the foreign-citizen fiancé(e) completes Form DS-160, Nonimmigrant Visa Application, and other necessary documentation in preparation for their interview at a U.S. Embassy or Consulate. This information will include evidence of a relationship with the U.S. citizen sponsor and other requirements of an immigration visa. An affidavit of financial support may also be required.

Eligible children of K-1 visa applicants may apply for K-2 visas.

Can Same-Sex Couples Obtain Citizenship?

Same-sex couples can apply for citizenship through naturalization, and similar to opposite-sex marriages can reduce residency requirements. Naturalization typically requires five years of residence in the U.S. after being admitted as a lawful permanent resident. However, the period of home needed for married couples is only three years. You must have lived together in a “marital union” with your spouse, a U.S. citizen, during the three years.

Choose Same-Sex immigration lawyers in Chicago Illinois. You Can Trust

A qualified Chicago Illinois, immigration attorney can help you, and your partner understands and works through this complex application process. Attorney Toma Makedonski and his team at the immigration law hub understand immigration and nationality law and support immigration reform and equality for all partnerships. Attorney Makedonski is proud to advocate and support the LGBT community and equal rights for all.

Attorney Toma Makedonski offers a low-cost, flat fee in most cases, so you, as the client, know what your cost will be upfront. Toma Makedonski is a Chicago Illinois Immigration Lawyer with upfront, low-cost, flat fees on most immigration cases.

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