For more than 7 years, same-sex couples have the right to request a fiance or marriage visa petition on behalf of their spouse. Moreover, we understand that most people have many questions regarding the applicability and implications of a same-sex marriage immigration petitions. Therefore, we have compiled a list of commonly asked questions and answers for issues relating to applying for a green card through same-sex marriage.
Does it matter what state I live in?
No, since 2015 any same-sex married couple in the 50 states of the US can submit a same-sex marriage immigration petition.
Does a domestic partnership or civil union qualify me for immigration benefits?
No, you must be legally married. If you are not married, the first thing you must do to become eligible for a green card is to get married.
My partner lives in another country, but we are not yet married. how can I bring him or her to the United States of America?
The two most common options for a U.S. citizen to bring a foreign national partner to the United States is through
For the fiancé(e) visa, following a successful petition and visa application, your partner can join you in the United States, marry you within 90 days, and then apply for permanent resident status. In case you are able to get married first, the consular processing option can have certain advantages over the fiancé(e) visa process, although it generally takes longer for your spouse to join you in the United States.
What if I am a permanent resident of the United States? Can I still petition for a green card for my spouse?
Yes, but it is a somewhat different process and you will have a longer wait. If you are not a U.S. citizen, but instead are a lawful permanent resident, you may still apply for permanent resident status for your spouse, but the petition will be subject to the “preference” system, whereby certain green card petitions have to endure a sometimes lengthy waiting period before their petitions are processed.
I am a U.S. citizen, and my foreign national partner entered with a visa but is currently out of status. Will this affect our Same-Sex Marriage Immigration Petition for a green card?
It depends, and how your partner entered the United States makes a big difference. If your partner entered the U.S. by being inspected by an immigration officer. For instance, on a tourist or student visa, but has overstayed his or her visa, fallen out of status, and/or accrued unlawful presence, he or she is most likely still eligible for a green card as the spouse of a U.S. citizen. Unfortunately, this exception usually does not apply to someone out of status who wants to marry a permanent resident of the United States.
If the foreign national entered the U.S. without being inspected (e.g. crossed over the Mexican or Canadian border) or by committing misrepresentation (e.g. by impersonating someone else), it may be much more difficult for him or her to obtain a green card. Therefore, you might need to consult an experienced immigration attorney.
How long will it take for my spouse to receive a green card?
It depends, but if one of the spouses is a U.S. citizen, approximately three months to a year. After you file for a green card, the government must process your form before awarding your spouse a green card. In addition, you will be called for an interview in which an immigration official will ask questions to verify that you are in a real marriage. In the case of being a permanent resident only, your wait time could be longer than a year.
How Sethi and Mazaheri can help you with your immigration petition
We understand that these processes could seem complicated and hard to understand, especially when you don’t have familiarity with the documentation and procedures. For this reason, our attorneys are prepared to help you navigate this situation. Our firm is up to date on the new regulations and available to assist you on the best path for you to achieve legal status. We aim to provide some much-needed reassurance and guidance during these challenging times. We are here to help you in your immigration journey.
If you or someone you know is exploring different ways to help your partner achieve legal status, we highly recommend contacting our office directly at (646) 405-9846.