17 Jan What you should know about 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 January 10, 2018, we received an approval form USCIS of a self petition for abused spouse based on same sex marriage.
- On January 3, 2018, we received an approval from the Immigration Court for a waiver of misrepresentation for a client who was charged with misrepresentation in marriage;
- On December 15, 2017, we received an approval from USCIS for an adjustment of status for same sex marriage for an applicant who entered without inspection but has Sec. 245 (i).
- On November 16, 2017, we received an approval from Immigration Court for a waiver of misrepresentation for entering as single daughter of U.S. citizen but actually married. On October 25, 2017, we received an approval of I-485 adjustment of status for our client who has a DUI but has proof that he has cleared his record.
- On October 20, 2017, we received an approval of naturalization for a client who was granted a waiver of misrepresentation in Immigration Court.
- On October 16, 2017, we received from USCIS an approval for an adjustment of status for same sex marriage, after two scheduled interviews.
- On October 9, 2017, we received an approval from USCIS for adjustment of status for a client who entered as a seaman but has Sec. 245 (i) eligibility.
- On October 2, 2017, we received an approval of adjustment of status from USCIS for a client who entered without inspection but has Sec. 245(i).
- For the week ending September 15, 2017, we received three Immigrant Visa Approvals in U.S. Embassy Manila for three applicants who entered as seaman under the Provisional Waiver Program.
- For the week ending September 8, 2017, we received four N-400 Naturalization approvals.
- On August 31, 2017 we received an approval of adjustment of status for a client who has problems with birth certificate which we corrected.
- On August 25, 2017, we received approval of I-751 removal of condition on same sex marriage/
If you have immigration problems the Law Offices of Crispin C. Lozano can help you find a solution before your problem gets worse which could lead to deportation and family separation.
Crispin Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers Association. He specializes in immigration law and personal injury. For free consultation email or call (firstname.lastname@example.org / 1-877-456-9266)