Same Sex Marriage For Immigration/ Green Cards : Updated For 2020

If you are in a gay or lesbian marriage, can you get a green card if one spouse is already a green card holder or US citizen?

The short answer is YES.

Same sex marriage has been legal nationwide in the United States since June 2015, and with the Supreme Court’s landmark case of United States v. Windsor, gay, lesbian, and transgendered married couples now have the same rights as heterosexual couples in terms of immigration and marriage-based green cards, and can access the same visas, or sponsor a partner under the same regulations as heterosexual couples.

Benefits stemming from same sex marriage in the US include:

  • Adjustment of status (green card application) through marriage to a United States citizen
  • Cancellation of removal for immigrants with ten years continuous presence in the United States and a qualifying relative, the citizen or resident spouse
  • Receiving political asylum through the principal applicant

What is considered a valid same sex marriage for immigration into the US?

  • While many same sex couples entered civil unions prior to gay marriage being legal, this will not work. The union must be a legal marriage.
  • The marriage can be from anywhere in the US.
  • You can be married outside the United States, but it must be from a country that considers same sex marriage legal.

What are the most common issues for gay and lesbian couples trying to get a green card through marriage?

Time and again I see people come through my office applying for green cards through marriage, and the issues are the same for straight and gay couples alike.

  1. It must be a real relationship. You have to know this person well, and appear valid as a couple. The key thing here is that the immigration authority who is running your interview believes the marriage to be authentic, and not just to get your green card.
  2. Any emails, photos, or correspondence you have proving a relationship are important.
  3. It’s necessary to have a joint rental lease, or legal documentation showing you are living together.
  4. The same is true for joint finances, such as beneficiary of insurance plans and joint bank account statements.

There are numerous avenues for green card applications for same sex immigrants

(Remember the same applies to non same sex immigrants)

1) Same sex residents can apply for marriage based green cards and visas through I-130 visa petition to sponsor his or her immigrant spouse. In order to get this you must be legally married in either the US or another country. You must have a genuine relationship!

2) Not yet married? You can apply for a K-1 Fiance Visa. The K-1 Visa allows the recipient to enter the US for the purpose of getting married within 90 days. Once married, the LGBT immigrant may then file for a green card through adjustment of status. If the USCIS approves the green card before two years of marriage has ensued, permanent residency will be conditional. K2 Visas can be used to bring in children from the fiance as well.

3) Green Card Lottery  (or Diversity Visa Lottery) winners can convey permanent residency to their same sex marriage partners.

4) Working in the US? There are a number of options for employment based immigration for gay and lesbian spouses.

5) An immigrant in the LGBT community can file for a 601 a Waiver if they can prove extreme hardship to the spouse they would leave behind if deported. We have had enormous success with these cases.

6) An immigrant who has been granted asylum can then apply for asylum for spouse and children.

At Harlan York and Associates we have long supported the LGBT community’s road to equality under the law, and welcome any questions you might have for us on immigration options for same sex marriage couples. Immigration law is constantly changing and there are always new avenues opening up, so please do not hesitate to contact us to find out how we can help you or a loved one remain in or enter the United States.

Written by: Harlan York

Immigration Attorney Harlan York is Former Chair, Immigration Section, NJ State Bar Association and Former Co-Chair, NY State Bar Association CFLS Immigration Committee. Mr. York appeared on National Television on CBS This Morning with Charlie Rose and Primer Impacto on Univision, as well as Telemundo, NBC, and PBS. He was honored as First Ever Immigration Lawyer of The Year in NJ by Best Lawyers.

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