Frequently Asked Questions: Immigration Benefits for Same-Sex Couples

Green cards, visas, and other immigration benefits have been a reality for same-sex marriage couples since the Supreme Court’s landmark gay rights decision in United States v. Windsor, which invalidated DOMA (the Defense of Marriage Act”) and reinforced on Friday by the Supreme Court in Obergefell v. Hodges . Thankfully, legal discrimination against LGBT immigrants is no more. Now, same-sex married couples are afforded precisely the same rights and benefits under U.S. immigration laws as are opposite-sex married couples.

Dahlia Castillo is a strong supporter of the LGBT community and uses considerable skills and experience to help gay, lesbian, and transgendered immigrants and their families achieve their immigration objectives.

These FAQs address some of the questions anticipated by LGBT families with immigration issues following these two landmark cases.

If I am in a same-sex marriage, can I file a green card petition on my same-sex spouses behalf?

Yes, you may file your petition.  Your eligibility to petition for your same-sex spouse will have to meet the general criteria for marriage-based immigration for opposite-sex spouse.

If my partner and I entered into a civil union (for example in New Jersey) or a Domestic Partnership (for example in California) with all the rights of marriage, but are not actually married, can I sponsor her for a green card?

The answer to this is not entirely clear, and we hope to have guidance on this soon.  If it is possible for you and your partner to marry even if you have to travel to a different state to do so, you may be better off marrying because you could then feel more secure in filing right away without having to wait for further guidance.

I am in the U.S. legally on a non-immigrant visa that allows me to have the intention to stay in the U.S. (for example an H1B or L1 visa).  I am married to my spouse; can she file a green card application for me?

Yes, as long as the two of you are lawfully married, and you meet the other general immigration marriage requirements, you should be able to apply to adjust status to lawful permanent resident and process your paperwork from within the U.S.

I am in the United States on a non-immigrant visa (for example a tourist or student visa) that required me to demonstrate that I did not have the intent to immigrate to the U.S.  Is it a problem for me to marry my partner and have her file a marriage-based green card application?

Maybe.  As with many areas of immigration law, this is an area that will involve a fact-intensive inquiry by the USCIS.  It is considered acceptable to enter the U.S. with the intention to remain here temporarily and then have your intent change as circumstances in your life change.  For example, a university student might meet someone after attending school here and decide to marry that person months or years after entering the U.S. on a student visa.  On the other hand, if a person enters the U.S. on a tourist visa, marries, and applies for a green card within three weeks of entering the U.S., USCIS may conclude that the individual misrepresented her lack of immigrant intent to the immigration official at the airport and this could lead to a denial of the application.  This is the law for different-sex couples, and we expect it will apply identically to same-sex couples.

I entered the U.S. with a visa several years ago and never left.  Can my U.S. citizen spouse file a green card application for me even though I am now here without legal status?

Yes.  While the general rule under U.S. immigration law is that you cannot change your status from unlawful to lawful from within the United States, one very important exception to that rule is for spouses of U.S. citizens.  As long as you entered the U.S. with inspection by a U.S. immigration officer, you can still file for a green card (adjust status) from within the U.S. even if you are currently here without lawful status.

I entered the U.S. without a visa and without inspection, by crossing the Mexican border.  Can my spouse sponsor me for a green card?

This is a complicated application, and you will need to consult with an immigration attorney. You cannot file for a green card from within the United States if you entered without inspection.  (There is an exception to this rule for people who had an immigration petition or labor certification filed on their behalf on or before April 30 2001.)   That means you will have to return to your home country to apply for a green card through consular processing.  However, when you leave the U.S. to apply, you will probably be prohibited from returning because of the three year/ten year bar on returning to the U.S. following the accrual of unlawful presence.

My spouse and I are legally married. I live in the United States but my spouse  currently lives abroad  because she had no way to get a green card here.  What do we do now?

The two of you can file a marriage-based green card application.  Since she is currently outside the United States, the application will be processed through the U.S. consulate in her country (consular processing), meaning that the U.S. consular staff will interview her there, rather than in the U.S.  If her application is approved and she enters the U.S., she should be able to do so as a lawful permanent resident.

Immigration Officers Respond Like God Answers Prayers: “YES,” “NO,” “WAIT”

You have been waiting for months for the “Big” day – your green card interview.  You are overwhelmed by all sorts of emotions – excitement, anxiety, fear – all piled into one.  You are praying to God that your nerves do not get the best of you.  The immigration officer asks you a barrage of questions about your marriage and jots down notes.  The immigration officer flips through your application maybe about ten times. In spite of your nerves, you thought your interview well.  So towards the end you were pretty sure your green card would be approved on the spot.  But he hands you a piece of paper that  said your file is being held for further review.


Notice of Interview Results: “Your case is being held for review. At this time, USCIS does not require any further information or documents from you. Should further information or documents be required, you will receive a notice in the mail.”


Say what?!!!!!

What does this mean? Was my green card approved or denied?

The immigration officer responds to green card applicants like God answers prayers: “yes,” “no,” and “wait”.  

A notice of interview results is  not at all unusual.The green card interview can end in one of three ways: (1) approved with a temporary I-551 stamped in your passport, (2) application denied, or (3) your application is held for review.

Number three is the most confusing and frightening experience for the green card applicants and their families. Once the interview is completed, the officer may review the case and at times, may also review it with his/her supervisor. What normally happens, depending on the officer’s workload, he/she still has some security or background checks to conduct. The immigration officer will update the system to generate the approval notice and the green card.  As a matter of policy, the immigration officer must give the applicant something and this notice of review is the routine to let the green card applicant know that their application is still pending.  If any information is missing, the applicant will be notified and be provided with time to submit it. If all documentation is complete and there are no issues, then the green card applicant will be notified and receive his/her green card in the mail.

that we would be notified by mail of the decision, and we should wait 60 days before inquiring about the case status. He didn’t say anything else. We weren’t asked for any further evidence and the box for ‘background checks’ was not checked on the letter. The box that was checked just said: ‘your file is being held for further review before a decision can be made’.

Bottom line: Probably nothing to worry about.


Myth or Truth: Are “Illegal Immigrants” taking American Jobs?

 Many Americans can’t take low paying jobs because they have to pay taxes. 

Are Americans competing with the “illegals” to pick produce, drive taxis and wash dishes? How exactly are they ruining the American way of life?

According to the Homeland Security statistics, over 14.4 million immigrants obtained lawful permanent residence in the United States in the past 10 years. There are many myths and truths about whether immigrants (lawful or unlawful) are causing harm to America’s economy.


Immigrants don’t pay taxes

Undocumented immigrants are already U.S. taxpayers. Collectively, they paid an estimated $10.6 billion to state and local taxes in 2010, according to the Institute on Taxation and Economic Policy. The impact of undocumented immigrants on the budgets of local and state governments cited Internal Revenue Service (“IRS”) figures showing that 50% to 75% of the about 11 million unauthorized U.S. immigrants file and pay income taxes each year.  Although undocumented immigrants cannot get a Social Security number (“SSN”), they can  file an income tax return by applying for an Individual Taxpayer Identification Number ( or “ITIN”).  An ITIN is a tax processing number issued by the IRS for individuals who cannot get a SSN and are required to file income tax returns. ITINs are only used for tax reporting and serve no other purpose.


Immigrants come here to take welfare

Undocumented immigrants do not qualify for welfare, food stamps, Medicaid, and most other public benefits. Most of these programs require proof of legal immigration status and under the 1996 welfare law, even LEGAL immigrants cannot receive these benefits until they have been in the United States for more than five years.


Immigrants send all their money back to their home countries

In addition to the consumer spending of immigrant households, immigrants and their businesses contribute billions in tax revenue to U.S. federal, state, and local governments. While it is true immigrants send billions of dollars a year to their home countries, this is one of the most targeted and effective forms of direct foreign investments. This is a similar practice of wealth Americans who send their money off shore to foreign banks because their lenient taxes.


They take jobs and opportunity away from Americans

The largest wave of immigration to the U.S. since the early 1900s coincided with our lowest national unemployment rate and fastest economic growth. Immigrant entrepreneurs create jobs for U.S. and foreign workers, and foreign-born students allow many U.S. graduate programs to keep their doors open. The American economy needs immigrant workers. The belief that immigrants take jobs that can otherwise be filled by hard-working Americans has been disputed by an overwhelming number of economic research studies and data.

Removing the approximately 8 million unauthorized workers in the United States would not automatically create 8 million job openings for unemployed Americans.  For one, removing millions of undocumented workers from the economy would also remove millions of entrepreneurs, consumers and taxpayers. The economy would actually lose jobs. Second, native-born workers and immigrant workers tend to possess different skills that often complement one another.

Immigrants, regardless of status, fill the growing gap between expanding low-skilled jobs and the shrinking pool of native-born Americans who are willing to take such jobs. By facilitating the growth of such sectors as retail, agriculture, landscaping, restaurants, and hotels, low-skilled immigrants have enabled those sectors to expand, attract investment, and create middle-class jobs in management, design and engineering, bookkeeping, marketing and other areas that employ U.S. citizens.


Immigrants are a drain on the U.S. economy

During the 1990s, half of all new workers were foreign-born, filling gaps left by native-born workers in both the high- and low-skill ends of the spectrum. Immigrants fill jobs in key sectors, start their own businesses, and contribute to a thriving economy.  Most immigrants arrive in prime working age. That means we haven’t spent a penny on their education, yet they are transplanted into our workforce and will contribute billions toward our social security system over the next 20 years.


 Myth Busted!

Immigrants are not taking jobs away from Americans. They contribute to the American economy. Immigrants take low-skilled jobs that native-born Americans are unwilling to take.