Same Sex Immigration Common Questions

Most of our clients have many questions about how same sex immigration law works. Although there are many things we are not legally able to discuss, there are many common questions that we can. Here are just a few.

What is DOMA?

The “Defense of Marriage Act” was a federal law banning the marriage of same sex couples. Immigration law is also federal. Therefore, DOMA made it impossible for legally married same sex couples to receive permanent residence or “green cards” through marriage.

What was the decision made by the Supreme Court regarding DOMA?

In 2013 The Defense of Marriage Act (“DOMA”) was finally declared unconstitutional by the U.S. Supreme Court. Now American citizens and lawful permanent residents are able to apply for their same sex spouse to get a green card.

Has the government said how they will be dealing with same sex immigration applications?

Yes, in 2013 USCIS create a webpage called Same Sex Marriages which provides answers to some questions regarding LGBT immigrant families’ and what they can expect now that DOMA has been struck down. Now families are eligible for all immigration benefits, and because of immigration law, agencies must validate your marriage in the country or state it took place.

We live in a state that DOES NOT recognizes same sex marriage can we still apply for a green card?

Yes, as long as your marriage is legal and can be proved legitimate in the state or country where you got married, it is irrelevant where you live now, and that marriage qualifies you to apply for lawful permanent residence or a “green card”.

We got married in Barbados. Are marriages outside the U.S. considered legitimate?

Yes! So long as your marriage is legal, it works for the purpose of immigration.

Can I just marry any US citizen and am granted a “green card”?

That is fraud and there are serious consequences for both you and the US citizen spouse. If you are ever caught the foreign spouse faces removal/deportation and the US citizen spouse faces criminal charges including fines and jail time. We advise against this.

Is it an easy process to get a “green card” through same sex marriage?

Being awarded lawful permanent residence is complicated. There needs to be an overwhelming amount of proof that a couple lives together and shares all financial and marital obligations. An affidavit of support must also be signed by the US spouse agreeing to support the foreign national. This affidavit in turn, allows the US government to sue the sponsor if the foreign national becomes a public charge at any time. At that point the foreign national is now a “conditional” resident for the first two years. Then the couple must apply jointly to have all conditions removed from the foreign national’s permanent residency, this requires full submission of the couples’ documentary proof once again. This total process takes about five years.

If my partner and I get married in a state that recognizes same sex marriage, can I apply for my partner to receive a “green card”?

Yes, the US government will give many families a green card! Once the Supreme Court did away with DOMA, LGBT families must be treated the same under federal law, this includes immigration law. LGBT families will no longer be denied “green cards” solely based on the couple being same sex.

I am a legal US permanent resident and I would like to naturalize. I also want to marry my partner. Can I do both?

Anytime you marry a US citizen it should not have any affect on your ability to naturalize. Sometimes it can help you receive citizenship faster than expected. Normally foreigners can only apply for naturalization after having lived in the US for a minimum of five years as a lawful permanent resident.  However a foreigner who is married to a US citizen only has to wait three years before being eligible for naturalization.

How can I, as a US citizen, stay together with my same sex partner from another country?

There are many different factors that determine your options. Now that DOMA has ended, LGBT families will not get different treatment than different sex families. There are other ways to obtain permanent residency through winning asylum, the diversity visa lottery or through employer sponsorship. In some cases foreign nationals living in countries enduring prosecution due to sexual orientation, HIV-positive status, or transgender identity may be able to receive asylum here in the US.

I am here illegally in the US and have been working undocumented. Do I have to pay taxes? Am I risking deportation?

This question cannot be answered with any guarantee because it is illegal to work in the US without permission, but it is also illegal to work without filing taxes. It is in your favor to pay taxes to the IRS in case you ever get the opportunity to legitimize your status here in the US. IRS could share this information with immigration and paying taxes as an illegal could trigger questions about the immigration status of the undocumented worker. Unfortunately there is no safe answer. The last method would be to save money each year to pay taxes in the future once you have legalized your status. This would include filing late with a tax expert and paying penalties.

My partner lives in an impoverished country and has applied for a tourist visa many times without success. How can I help my partner?

This can be a challenge for many foreign nationals. Your partner must provide evidence that he wishes to live in his home country permanently and will only be in the US temporarily for a specific and very limited reason. The more severe the conditions are in the foreign national’s country, the harder it may be to prove that he truly does not want to live in the US. Your partner should show current ties to his home country including but not limited to, current stable employment, owing property, and familial ties. Telling the US government about foregoing a long-term relationship with a US citizen could likely result in your partner being denied a tourist visa. There is no recourse to appeal tourist visa denials.

In 2001 I came to the US on a tourist visa and stayed, can I become legal?

Generally, if you are here in the US illegally, your status cannot be changed to become legal from within the US. But if you leave the US as an illegal that has been in the US for one year or more, you are banned from reentry for ten years. The only exception to changing legal status is made for applicants of asylum situations and applicants that are currently sponsored by immediate relatives including but not limited to, adult children and spouses.

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