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Immigration and Same-Sex Marriage FAQ

Published in Philadelphia Gay News
By Marco Pignone III, Esq.

Thanks to the Supreme Court decision in U.S. v. Windsor, which ended Section 3 of the federal Defense of Marriage Act, gay and lesbian immigrants can apply for green cards through their U.S. citizen or green-card-holding spouses. Here are the answers to some common questions regarding the immigration process.

Q: Can my spouse apply for a green card if we live in a state that does not recognize same-sex marriage?
A: Yes, as long as the state in which you married recognizes same-sex marriage, and the Board of Immigration Appeals just confirmed this in a case called Matter of Zeleniak, which has been posted on the Department of Justice’s website.

Q: How does a couple prove that their marriage is bona fide?
A: We hope that Immigration Service officials will not hold same-sex marriages to a higher standard and require more evidence than they would of a heterosexual couple. However, in our experience, couples without children are expected to present more evidence than those with children. Therefore, same-sex couples who have not adopted children together should prepare for more rigorous evidentiary requirements, as well as longer and more difficult interviews.

Q: How does this process work if my spouse is in the United States?
A: After you file a marriage-based petition, green-card application and other supporting immigration forms, the Immigration Service schedules an appointment to take your spouse’s fingerprints. You and your spouse then attend an interview with the Immigration Service. Most interviews are currently being scheduled in less than three months after filing for individuals living in Pennsylvania, New Jersey and Delaware, and we expect this timeframe to remain the same for petitions based on same-sex marriage. If the Immigration Service approves the case, the government mails a green card in four-six weeks.

Q: How does this process work if my spouse is outside of the United States?
A: You must still file an immigrant visa petition in the United States, but once the petition is approved, it will be sent to the Department of State’s National Visa Center for “consular processing.” Your spouse will attend an interview at the U.S. Consulate in the country where he or she resides, but you will not be required to attend the interview as you would if your spouse was in the country. This process takes roughly nine months to a year, depending on what country your spouse resides in.

Q: How do I know if my spouse is eligible for a green card?
A: If your spouse is in the United States, the manner in which he or she entered the country is critical. The spouse of a U.S. citizen may obtain a green card even if he or she has “overstayed” the nonimmigrant visa beyond its expiration date and is now out of status. However, the spouse of a green-card holder will not be able to obtain a green card until his or her spouse becomes a U.S. citizen. Your spouse will also be ineligible for a green card if he or she gained entry to the United States by using a fraudulent document or lying on a nonimmigrant visa application. There are many other factors that can cause an immigrant to be ineligible for a green card, such as criminal history, as well as legal exceptions to those factors. For example, some immigrants who committed immigration fraud or certain crimes remain eligible to apply for a green card if they are able to prove extreme hardship to their U.S. citizen spouse in the event they are deported.

If your spouse entered without inspection, or just walked across the border without being inspected by a U.S. official, he or she may not be eligible to apply for a green card in the United States, except under certain limited circumstances. Immigrants who entered the country without inspection may, however, be eligible to submit a “stateside waiver,” which will allow them to apply for a green card abroad at a U.S. consulate by showing that you would experience extreme hardship if your spouse’s application is denied.

Q: Can I petition for my spouse’s children?
A: U.S. citizens can sponsor their spouse’s biological or adopted children in a separate petition if the children were under 18 years of age at the time of your marriage.

Marco Pignone III, Esq., is an associate at Getson & Schatz, P.C., and concentrates his practice on immigration litigation. Disclaimer: This material is provided for informational purposes only and not for the purpose of providing legal advice. Use of any information in this article does not create an attorney-client relationship between the author and the reader. Every case is unique, and many factors can complicate a case or affect an individual’s ability to obtain an immigration benefit. You should not act or rely on any information contained in this article without seeking the advice of a licensed attorney.

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