10 Jul Same sex marriage is now eligible for green card
The ruling of the U.S. Supreme Court that makes DOMA unconstitutional paves the way for gay and lesbian partners to apply for green card.
Question: What did the Supreme Court rule about DOMA?
Answer: The U.S. Supreme Court held that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional. Section 3 of DOMA was a federal law that limited federal marriage recognition to different-sex couples. Because immigration law is federal, DOMA prevented lawfully married lesbian and gay couples from obtaining lawful permanent residence (“green cards”) through marriage. Now that DOMA has been struck down, American citizens and lawful permanent residents can submit green card applications for their same-sex spouse.
Question: Can gay and lesbian couples get green cards now?
Answer: Yes, most families will now be able to obtain a green card.
With the end of DOMA, Lesbians, Gay, Bisexual, and Transgender (LGBT) families will be treated the same under immigration law as different-sex immigrant families. Immigration law is complicated and there will still be barriers for some couples, but the systemic discrimination that prevented our families from receiving the same respect under the law as others has ended. Green card applications will no longer be denied solely because a couple is lesbian or gay.
Question: Do we have to live in the state that recognized same sex marriage to apply for a green card?
Answer: No. If you have a marriage that is valid in the state or country where you were married – regardless of where you live – that marriage makes you eligible to apply for a green card.
The United States Citizenship and Immigration Services (“USCIS”) looks to see whether you entered into a valid marriage in the state or country where you married. While some federal benefits may only be available to married couples if you live in a state which recognizes your marriage, fortunately, this is not the case for immigration benefits.
Question: My partner can’t get a visa to come to the United States, and we can’t marry in his/her country because it does not recognize same sex marriage. What can we do now?
Answer: U.S. citizens can file fiancé/e visa applications for committed partners. This application requires the couple to demonstrate that they have a “bona fide” relationship. When the Fiancée visa is granted, the couple is required to marry within 90 days of the foreign partner’s entry into the US in the state that recognize same sex marriage. Once married, the couple can file the marriage-based application from within the United States.
Note: This is not a legal advice. You should consult with an immigration attorney about your specific situation.