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.

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