17 Aug Some issues in same sex marriage law
By Atty. Crispin Caday Lozano
Question: I am the beneficiary of a petition by my same sex partner in California which recognizes legality of same sex marriage. How many years do I have to wait to file for my naturalization?
Answer: Marriage to a U.S. citizen shouldn’t impact your ability to naturalize, and in some cases, it may allow you to acquire U.S. citizenship sooner than you would have otherwise been eligible. The general rule is that non-citizens can apply for naturalization after living in the U.S. for five years as a legal permanent resident. However, someone who is married to a U.S. citizen can apply for naturalization after three years, regardless of whether the non-citizen spouse obtained a green card through a marriage-based petition or through a different avenue. If a permanent resident marries their U.S. citizen partner, he or she should be eligible to apply for naturalization three years from the date of that marriage or five years from the date he or she became a permanent resident, whichever is sooner.
Question: I am a U.S. citizen and I wanted to petition my same sex partner in California. What is the procedure?
Answer: For families where both partners are in the United States, the U.S. citizen can submit a marriage based spousal petition and the foreign partner can apply for a green card through a procedure known as “adjustment of status.” So long as the foreign partner did not enter the U.S. without inspection (EWI) (i.e. crossing the border), this option should be available regardless of whether or not the foreign spouse is in lawful status or has fallen out of lawful status.
For families who are married and the foreign spouse is located outside the United States, the U.S. partner can submit a spousal petition and the foreign spouse can apply for an immigrant visa through the U.S. consulate, in a procedure known as “consular processing.” For families who are not already married, the U.S. partner can sponsor their spouse to come to the U.S. on a fiancé/e visa, which will allow the two to marry in the U.S. and subsequently file a marriage based application.
Consular processing is also the option that families have to pursue if the foreign spouse entered the U.S. without inspection. However, when the foreign national spouse leaves the U.S. to apply, they may be prohibited from returning because of the three-year/ten-year bar on returning to the U.S. following the accrual of unlawful presence here. As a result, some families may be need to file for a provisional waiver of this bar from within the U.S. and wait here for the waiver to be approved before the foreign partner leaves the U.S. to consular process.
Question: I am in removal proceedings and I was charged with misrepresentation of material fact. I do not have a parent or son or daughter who is a U.S. citizen or lawful permanent resident. Will I qualify for waiver if my same sex partner who is a U.S. citizen will marry me?
Answer: Yes. If your same sex partner will marry you, then you will be considered spouse of U. S. citizen. Whenever the immigration laws condition eligibility for a waiver on the existence of a “marriage” or status as a “spouse,” same-sex marriages will be treated exactly the same as opposite-sex marriages.
Note: This is not a legal advice.
- On August 11, 2016, we received an approval from USCIS of a green card based on employment without any interview.
- On July 29, 2016, we received an approval of Naturalization from USCIS for an alien who has an approved waiver for entering as single but actually married.
- On July 21, 2016, we received an approval of Naturalization from USCIS for an alien who has an approved waiver for using a different name.
- On July 11, 2016, we received an approval of I-360 self petition by abused spouse from USCIS.
- On June 15, 2016, we received an approval of I-601 waiver for a client who made a misrepresentation when she entered on an A2 visa under another person name.
- On May 25, 2016, we received an approval of green card for a client who used a different name from her birth certificate. We proved that she has been using her different name since she was in grade school.
- On April 28, 2016, we received an approval of PERM for a client who is employed in the Philippines.
- On April 19, 2016, we received an approval from USCIS for naturalization of a client who has a criminal record that happened five years ago.
- On April 11, 2016, we received an approval from USCIS for adjustment of status for a client who used a different name on her passport.
- On April 5, 2016, we received an approval from USCIS for petition by son to a father. The son was born out of wedlock and the father’s name was not on his birth certificate.
- On March 8, 2016, we received an approval of immigrant visa for a former crewman with whom we filed for provisional waiver.
- On February 3, 2016, we received an approval from USCIS of naturalization for client who has an approved waiver of misrepresentation.
- On January 28, 2016, we received an approval from USCIS for an I-360 self petition for abused spouse of U.S. citizen.
- On January 26, 2016, we received an approval from USCIS for an adjustment of status for client with big age difference with the U.S. citizen spouse based on good faith marriage.
- On December 18, 2015, we received an approval of petition for adoption that was previously denied because client did the petition by them.
- On December 11, 2015, we received an approval of DACA for a client who was in removal proceedings.
- We have more success stories at our website at crispinlozanolaw.com