Common concerns gay and lesbian couples may have with green card applications
Is it really possible?
If one partner is a U.S. citizen or holder of a green card, may lesbian and gay married couples apply for a green card?
Yes, in a nutshell!
The 2013 federal marriage equality ruling by the United States Supreme Court (United States v. Windsor) means that same-sex weddings are regarded the same as heterosexual marriages for immigration reasons in the United States.
As a result, gay and lesbian U.S. citizens and green card holders can apply for a marriage-based green card for their foreign national spouses, and the United States Citizenship and Immigration Service (USCIS) treats applications from same-sex couples in the same way that applications from heterosexual couples are treated.
However, there are a few areas where same-sex couples are more likely to have issues than heterosexual couples.
The following is a rundown of common concerns for same-sex couples and how to handle them.
Bona Fide Relationship
Legally Valid Marriage
Concerns About Bias
Common Questions
Conclusion
Bona Fide Relationship
The core of any marriage-based green card application is demonstrating that you and your spouse have a genuine marriage, not one primarily for the purpose of assisting the foreign national partner in obtaining a green card.
Same-sex couples must provide the same documentation as heterosexual couples to establish their marriage is genuine (for more information on what to include, see our guidance on How Do We Prove Our Marriage Is Genuine?). There are, however, a few possible issues that are more common in same-sex couples than in heterosexual couples.
There is no relationship with the in-laws.
As part of your initial filing package, include photos of you, your spouse, and your separate families to verify your connection is genuine (I-130 petition). Each spouse's correspondence with his or her in-laws is also kept separate. During the green card interview, it's even more vital to demonstrate a bond with your spouse's family. Almost invariably, the USCIS or consulate officer conducting the green card interview will inquire about your spouse's relatives. These could be inquiries regarding your spouse's siblings' names or what you did as a family to celebrate your mother-in-most law's recent birthday.
These questions can be difficult to answer if your spouse's family does not accept your marriage.
The best approach, like with any other issue, is always honesty. It's better, for example, to explain that you've never met your mother-in-law because she's homophobic than to try to hide the fact that you don't know your in-laws. You should know your in-laws' names and ages even if you've never met them. During your green card interview, being fully unaware of your spouse's family may arouse suspicions.
Lack of employment or lease documents
Showing that you and your spouse have a joint lease or that your spouse is listed on records with your employer—for example, as an emergency contact and/or a beneficiary of any employment-related benefits—is another good way to verify that your marriage is genuine. This can be difficult for same-sex couples who are concerned about prejudice from landlords or employers, especially since not all states have laws protecting LGBTQ people from discrimination in housing and work.
If you don't have a joint lease, you might use other documents to prove that you and your spouse live together. A combined utility bill, copies of your driver's licenses or ID cards with the same address, or any other official documents that demonstrate both of you live at the same address are examples of such documents. You can submit alternative records that prove you have joint financial resources if your spouse isn't mentioned in any of your employment-related documents. Joint bank account statements, documentation naming you and your spouse as beneficiaries of each other's life insurance policies (which do not have to be submitted by your employer), and joint credit card statements are examples.
The most crucial thing is to show that you live together and have common financial assets and obligations.
Prior heterosexual marriages
If one or both parties had previously married heterosexually, one typical concern for same-sex couples arises. USCIS will know whether you've been married before. On your green card application (I-130 petition), you must list any and all previous marriages, as well as produce divorce or death certificates proving that any former marriages were properly ended. While your green card interview may include questions regarding your opposite-sex marriage, having a previous heterosexual marriage will not automatically raise red flags. It's a good idea to prepare ahead of time for any interview questions, and it's critical to answer honestly.
Legally Valid Marriage
Separate from the issue of proving a legitimate marriage (discussed above), same-sex couples may confront unique difficulties in confirming their marriage's legal legality.
Civil unions vs. marriages
Many gay and lesbian couples joined into civil unions that gave some of the same benefits as marriage before the Supreme Court declared marriage equality across the United States in 2015 (Obergefell v. Hodges). Civil unions, on the other hand, do not provide immigration benefits. To be eligible for a gay marriage green card, you and your spouse must be married, not just in a civil partnership.
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.
Is it important where we got married in another country?
Your marriage must be valid in the location where it was performed, just as heterosexual weddings. That implies you'll have to marry in a country that recognizes same-gender unions (or you can get married anywhere in the United States). If your husband or wife is from a nation that does not recognize same-sex marriages, you may choose to apply for a fiancé visa.
Concern about Bias
Because consular officers and USCIS officials have a lot of discretion in granting or denying green card applications, many same-sex couples are concerned that they will be assigned to a biased officer who will deny all green card applications based on a same-sex marriage.
USCIS and consular officers have undergone sensitivity training on LGBTQ matters, and they are required to follow the law as professionals and public servants. Attorneys that work on a lot of same-sex marriage-based green card cases haven't noticed any significant bias from USCIS or consular employees.
FAQS:
My husband and I were married in a state or country that recognizes same-sex marriage, but we currently live in one that does not. Is it possible for me to sponsor my husband for a marriage green card?
Yes. In general, the legislation of the area or nation where the marriage took place determines whether the marriage is legally valid for immigration purposes.
Is it necessary for our child born abroad to have genetic ties to a US citizen parent in order to become a US citizen?
No. The State Department recently stated that children born outside the United States to married couples via in vitro fertilization or surrogacy will be granted citizenship. Previously, in order to achieve citizenship, children born outside of the United States had to be genetically connected to a U.S. citizen parent. The child now qualifies as long as one of the parents is a citizen of the United States. Parents who were previously denied citizenship for their child can now reapply under the new policy.
After three years, may a foreign spouse in a same-sex marriage file for naturalization?
Yes, opposite-sex marriages and same-sex marriages are treated the same. After three years, green card holders who are married to a U.S. citizen are entitled to petition for citizenship (versus five years for other green card categories).
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