There’s new hope for thousands of same-sex binational couples in the US following the repeal of DOMA by the Supreme Court. Here’s the lowdown on immigration procedures for same-sex spouses.
By David Hakimfar
June 2013 will undoubtedly go down in history as a landmark month for gay rights in America. The U.S. Supreme Court weighed in on two closely watched cases: Proposition 8, and repeal of a key portion of the Defense of Marriage Act (DOMA). These decisions extend federal benefits to gay and lesbian married couples across the U.S. and allow same-sex marriages to resume in California. In fact, gay weddings began to take place again in San Francisco just two nights after the decisions were announced.
But the victory is especially sweet for the thousands of bi-national couples in America who now have a path open for legal immigration. “(This) historic decision means that our immigration system must stop treating gay and lesbian families differently than other families,” the American Immigration Council said in a released statement. “For far too long, gay and lesbian U.S. citizens and lawful permanent residents have been barred from obtaining immigration status for their non-citizen spouses. As a result, families have been separated and spouses of U.S. citizens and permanent residents have been deported from the United States.”
Immigration Law Basics
Generally, United States immigration laws treat persons as either U.S. citizens or aliens. Citizens must be born in the United States, or “naturalized.” (A naturalized citizen is someone who was not born in the country but has obtained citizenship later.) Therefore, by definition, all persons who are not U.S. citizens are aliens.
Immigration law further classifies aliens according to their immigration status, with each group having different rights and obligations, such as the right to reside in the United States, the right to sponsor relatives, and the right to work in the United States. Aliens may be lawful permanent residents (green card holders), immigrant visa holders, temporary lawful visitors or undocumented illegal aliens.
Aliens who want to enter the United States must first get a visa from a U.S. consulate or embassy. Non-immigrant visa holders may enter the United States for a fixed period and purpose, depending on visa type. These can include tourists, students and temporary visitors. Immigrant visas, however, may be employment or family-based, allow their holders to remain permanently and to eventually apply for citizenship. Aliens with immigrant visas may legally work in the country.
Same-Sex Marriages and Immigration
Same-sex spouses benefit from the DOMA ruling if their marriage was performed legally, whether in a U.S. state or in a foreign country where same-sex marriage is legal. If you are an American citizen and you married your foreign spouse in another country you have two ways to bring them to the United States to live. The first is to obtain an Immigrant Visa for a Spouse of a U.S. Citizen (IR1 or CR1). An Immigrant Petition for Alien Relative (Form I-130) is required. The second is to obtain a Nonimmigrant Visa for Spouse (K-3). The application for the nonimmigrant visa for spouse must be filed and the visa must be issued in the country where the marriage took place. After the visa process has been completed and the visa is issued, the spouse can travel to the United States to wait for the processing of the immigrant visa case.
If you are an American citizen, you may also bring your fiancé to the United States to marry and live here. You must obtain a Nonimmigrant Visa for Fiancé (K-1) to travel to the United States for marriage. An I-129F fiancé petition is required.
If your spouse is already living here and entered the country legally, then he or she may file for adjustment of status without having to leave the United States. In most cases, the spouse receives an Employment Authorization Document (E.A.D.) within 90 days. If your foreign born spouse entered the U.S. without inspection, they may have to apply for a green card abroad first. They may be able to apply for a provisional waiver in the United States, however.
To obtain a green card, your marriage must be legitimate and will be carefully scrutinized by immigration officials. Marriages between U.S. citizens and legal permanent residents are circumspect, even between opposite-sex couples. Married couples must provide evidence that their marriage is bona fide, and not entered into just to grant the other person immigrant status. Factors that can help support the legitimacy of the marriage include if there was a wedding reception where the U.S. citizen spouse’s relatives attended, if the couple owns property together, if they file taxes jointly and if the couple has any children.
If the marriage is less than two years old when the green card is issued, the Permanent Resident Card will expire after two years. The couple must then submit a form I-751 before the expiration of the green card so that the foreign-born spouse can gain a ten-year green card. If the couple divorces before the end of the two-year period, the foreign-born spouse must apply for a “good faith marriage waiver.”
Immigration law is complex and can be difficult to navigate without assistance. Enlisting the help of a qualified attorney experienced in immigration law is a good idea to insure that the process goes as smoothly as painlessly as possible.
David Hakimfar is a Trial Attorney and Senior Partner of Hakimfar Law, PLC, in West Hollywood, CA and a member-attorney of Pride Legal. He can be reached at 310-730-1250, or through Pride Legal at 888-789-7743.