Same-Sex Relationships and Marriage-Based Green Cards
The U.S. Supreme Court’s federal marriage equality decision in 2013 (United States v. Windsor) means that same-sex marriages are treated the same as heterosexual marriages for immigration purposes under U.S. law.
Gay and lesbian U.S. citizens and green card holders can therefore apply for a marriage-based green card for their foreign national spouses, and United States Citizenship and Immigration Service (USCIS) treats applications from same-sex couples the same as applications from heterosexual couples.
However, there are a few areas that are more likely to cause hiccups for same-sex couples than for heterosexual couples. Here's a rundown of some common concerns for same-sex couples and how to handle them:
1. Proving a “Bona Fide Relationship”
The foundation of any marriage-based green card application is proving that you and your spouse have an authentic marriage, rather than a marriage solely intended to help the foreign national partner obtain a green card.
There are no special requirements for same-sex couples—you need the same documents as heterosexual couples to prove an authentic marriage (for more information about what to include, see guide on How Do We Prove Our Marriage Is Real?). However, there are a few potential challenges that are more common among same-sex couples than among heterosexual couples.
No Relationship with In-Laws
Photos of you, your spouse, and your respective families are a good way to prove your relationship is authentic as part of your initial filing package (I-130 petition). So is correspondence between each spouse and his or her in-laws.
Showing a relationship with your spouse’s family is even more important during the green card interview. The USCIS or consular officer conducting the green card interview will almost always ask questions about your spouse’s family. These could be questions about the names of your spouse’s siblings or what you did as a family for your mother-in-law’s most recent birthday.
If your spouse’s family does not accept your marriage, these questions can be challenging.
As with any other issue, the best approach is always honesty. For example, it’s better to explain that you’ve never met your mother-in-law because she is homophobic, than trying to cover up the fact that you have no relationship with your in-laws.
Even if you’ve never met your in-laws, however, you should know their names and ages. Being completely ignorant of your spouse’s family could raise suspicions during your green card interview.
Lack of Employment or Lease Documents
Another strong way to prove that your marriage is authentic is to show that you and your spouse have a joint lease or that your spouse is listed on documents with your employer—for example, as an emergency contact and/or as a beneficiary of any employment-related benefits.
This can be challenging for same-sex couples who fear discrimination either from landlords or from employers, especially because not all states legally protect LGBTQ individuals from discrimination in housing or employment.
If you don’t have a joint lease, you can show that you and your spouse live together using other documents. These might include a joint utility bill, copies of your driver’s licenses or ID cards showing the same address, or any other official documents that show both of you living at the same place.
If your spouse isn’t mentioned in any of your employment-related documents, you can submit other documents that show that you have joint financial resources. This might include joint bank account statements, documents showing you and your spouse as the beneficiaries of each other’s life insurance policies (which need not be employer-provided), or joint credit card statements.
The important thing is to provide proof that you live together and that you have joint financial assets and responsibilities.
Prior Heterosexual Marriages
One common concern for same-sex couples arises if one or both of the partners has had a heterosexual marriage in the past. If you’ve been married in the past, USCIS will know. You are required to list any and all previous marriages on your green card forms (I-130 petition), and to provide divorce certificates or death certificates proving that any prior marriages were legally terminated.
While you should expect questions about your opposite-sex marriage at your green card interview, having a previous heterosexual marriage will not automatically raise red flags. As with any interview questions, it’s a good idea to prepare ahead of time, and it’s essential to answer honestly.
This issue becomes more complicated if you or your spouse previously filed a green card application (specifically, the I-130 petition) based on a prior heterosexual marriage. At the interview, you could face accusations that this prior marriage was fraudulent and solely intended to obtain a green card. If you became a U.S. citizen or a green card holder based on a prior marriage and are now sponsoring your current spouse for a green card, your current marriage will also be intensely scrutinized.
If any of these scenarios apply to you, it’s critical that you be prepared to explain honestly and clearly why you were previously in a heterosexual marriage. It’s less important to get into the emotional details of your relationship with your ex-spouse; the most important thing is to establish that you were not married solely for immigration purposes.
2. Proving a Legally Valid Marriage
Separate from the matter of proving an authentic marriage (described above), same-sex couples may face special challenges in establishing the legal validity of their marriage.
Marriages vs. Civil Unions
Before marriage equality was established throughout the United States by the Supreme Court in 2015 (Obergefell v. Hodges), many gay and lesbian couples entered into civil unions that provided some of the same benefits as marriage. Immigration benefits, however, are not one of the benefits of civil unions. You must be married, not just joined in a civil union, to be eligible for a marriage-based green card.
Does It Matter Where We Were Married in the United States?
No. Immigration benefits are governed by U.S. federal law, so state or local laws regarding gay rights are irrelevant when it comes to immigration. Since the Supreme Court ruled that same-sex marriages must be recognized everywhere in the United States, you do not need to get married in a state that passed its own law legalizing same-sex marriages.
Does It Matter Where We Were Married Abroad?
As with heterosexual marriages, your marriage must be valid in the place it was performed. That means that you must get married in a country that recognizes same-sex marriages (or you can get married anywhere in the United States).
If your partner lives in a country that doesn’t recognize same-sex marriages, then you might want to consider applying for a fiancé visa. For more information, see our guide on How is a Fiancé Visa Different from a Marriage-Based Green Card?
3. Concerns about Bias in the Immigration Process
Because individual consular officers and USCIS officers have a lot of freedom to use their discretion when granting or denying green card applications, many same-sex couples worry about getting a biased officer who is inclined to deny all green card applications based on a same-sex marriage.
USCIS and consular officers have received sensitivity training on LGBTQ issues and, as professionals and public servants, they are expected to carry out the law. Attorneys who assist with a large number of same-sex marriage-based green card cases have not reported a major bias issue among USCIS or consular officers.
Conclusion: All Marriages Are Equal Under the Law
It’s the law of the land that same-sex marriages be treated the same as heterosexual marriages throughout the immigration system.
That said, as with anything related to immigration, the best practice is to honestly and clearly explain any potentially confusing situations. If you include in your filing package a genuine written explanation (in the form of a cover letter, for example) for any potential issues your green card application might face, you may avoid being asked for more evidence of an authentic marriage at the interview stage.
In any event, consular officers and USCIS officers receive sensitivity training about cultural and other issues faced by same-sex couples, so they won’t be shocked to hear that someone from a conservative country is not “out” to his or her employer, for example.
While same-sex couples may sometimes face special hurdles when applying for a marriage-based green card, these challenges should be easy to address in most cases, especially with appropriate documentation and preparation.
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