Since the fall of DOMA, the immigration possibilities of same-sex couples where one happens to be of a different nationality have greatly increased. We at SwagatUSA are thrilled to be able to assist a number of same-sex couples in their life goals by resolving their immigration issues! However, a few challenges still remain. Here I will write specifically about marriage-based green card applications, where one of the spouses is a US citizen and another is a foreign-national.
What are potential challenges for same sex green card applications?
Generally speaking, a same-sex marriage, when it is legally recognized in the state in which it was celebrated/registered is supposed to be treated no differently from any opposite-sex marriage. This means that same-sex couples can now file for an adjustment of status (I-485) application, can petition spouses from various countries, and can have same-sex spouses be their dependents on visa applications. However, because same-sex marriage is not equally recognized in every state or every part of the world, a few challenges do remain. I will try to highlight some of them.
Same sex couples must be certain that your marriage is valid where celebrated. This means that make sure that you fulfill any residency requirements for that state, etc. Also, forms of commitments other than an actual full and complete marriage are not recognized at this time for immigration purposes.
Keep in mind too that your history, including relationship history, marital history and immigration history will be examined as a part of any marriage-based application. We occasionally get couples who have previously been married to an opposite sex partner. While it may be before they “came out,” any such changes that could raise questions about the good faith of the current marriage should be examined and explained as a part of case preparation. A good lawyer should be able to work with you to fully explain these transitions to USCIS.
Not every family is equally accepting of same-sex marriage. Because family affidavits are occasionally used to support a marriage-based application, when they are not available, alternative methods of supporting the relationship story should be used. Again, a good immigration attorney can help you figure out which methods are best suited in your specific situation.
Depending on whether the foreign-national spouse is interviewing in the US, or at an overseas consulate, an interview with both spouses may be required. If required, it may be a good idea to attend this interview accompanied by an immigration attorney. The main reason for this is that although the gender of the spouses should not make any difference in the adjudication of the case, these are still relatively new cases, and a little extra precaution is only likely to help the couple. If this is not possible, a thorough interview preparation is highly recommended.
This goes without saying, but anyone applying through a marriage-based application must make sure that their marriage and relationship are genuine and properly supported with evidence.
For general guidance on adjustment of status applications, read more here.