Same-Sex Marriage and Green Cards: Understanding Immigration Rights for LGBTQ+ Couples

The legalization of same-sex marriage in the United States has had a profound impact on immigration law. Prior to the landmark U.S. Supreme Court decision in Obergefell v. Hodges (2015) and the repeal of the Defense of Marriage Act (DOMA) in 2013, same-sex couples faced significant legal barriers to obtaining immigration benefits, including green cards through marriage. Today, same-sex couples have the same rights as opposite-sex couples when petitioning for a green card.

Consult a Houston family law and marriage visa attorney to discuss how same-sex couples can navigate the U.S. immigration process, the challenges they may face, and key considerations when applying for a marriage-based green card.

Can Same-Sex Couples Apply for a Marriage-Based Green Card?

Yes. Same-sex couples have the same rights as opposite-sex couples when applying for a marriage-based green card. If one spouse is a U.S. citizen or lawful permanent resident (green card holder), they can sponsor their foreign-born spouse for a green card through family-based immigration.

Legal Protections for Same-Sex Couples

• In 2013, the Supreme Court’s decision in United States v. Windsor struck down DOMA, allowing the federal government to recognize same-sex marriages for immigration purposes.
• In 2015, the Supreme Court’s Obergefell v. Hodges decision legalized same-sex marriage in all 50 states.
• S. Citizenship and Immigration Services (USCIS) now treats same-sex marriages equally under immigration law.

This means that same-sex spouses of U.S. citizens or green card holders can apply for a green card through marriage, just like opposite-sex couples.

Steps to Apply for a Marriage-Based Green Card as a Same-Sex Couple

Applying for a marriage-based green card involves multiple steps, including filing petitions, attending interviews, and proving that the marriage is genuine. Here’s an overview of the process:

Step 1: Confirming Marriage Legality

The first step in the marriage-based green card process is ensuring that the marriage is legally recognized. The marriage must have been performed in a jurisdiction—whether a U.S. state or a foreign country—where same-sex marriage is legally permitted. To prove the validity of the marriage, the couple must submit a marriage certificate issued by a recognized government authority. This official document serves as primary evidence that the marriage is legitimate and meets the legal requirements for immigration purposes.

Step 2: Filing Form I-130 (Petition for Alien Relative)

The U.S. citizen or green card holder spouse must file Form I-130, Petition for Alien Relative, with U.S. Citizenship and Immigration Services (USCIS) to establish the marital relationship.

This petition serves as the foundation for the green card application, demonstrating that the marriage is legally valid. Along with Form I-130, the petitioner must submit supporting documents, including a marriage certificate as proof of the legal union, evidence of the U.S. spouse’s citizenship or permanent residency such as a passport, birth certificate, or green card, and documentation proving the authenticity of the marriage.

This may include joint financial records, lease agreements, shared insurance policies, photographs, and affidavits from family and friends attesting to the legitimacy of the relationship.

Step 3: Adjustment of Status or Consular Processing

Depending on whether the foreign spouse is already in the U.S. or abroad, the green card process takes one of two paths:

If the foreign spouse is already in the United States, they may file Form I-485, Application to Adjust Status, while the I-130 petition is pending. This allows them to transition from their current immigration status to lawful permanent residency without leaving the country.

However, if the foreign spouse is residing abroad, they must go through consular processing, which involves completing the visa application and attending an interview at a U.S. embassy or consulate in their home country before receiving approval to enter the United States as a permanent resident.

Step 4: Attending the Green Card Interview

The couple must attend an interview with USCIS if the foreign spouse is adjusting status within the United States or at a U.S. consulate abroad if applying through consular processing. The primary purpose of this interview is to verify the legitimacy of the marriage and ensure that it was not entered into for the sole purpose of obtaining immigration benefits.

The interviewing officer will assess the couple’s relationship by asking detailed questions about their history, daily life, and future plans together, as well as reviewing supporting documentation that demonstrates the authenticity of their marriage.

Step 5: Receiving the Green Card

If the couple has been married for less than two years at the time of green card approval, the foreign spouse will receive a conditional green card, which is valid for two years. This conditional status requires the couple to jointly file Form I-751, Petition to Remove Conditions on Residence, within the 90-day period before the card’s expiration to demonstrate that the marriage is still genuine.

However, if the couple has been married for more than two years at the time of approval, the foreign spouse will receive a 10-year permanent green card, which does not require a separate petition to remove conditions.

Proving a Bona Fide Marriage in Same-Sex Green Card Applications

One of the most important aspects of the marriage-based green card process is demonstrating that the marriage is genuine. USCIS requires evidence that the marriage was not entered into for immigration benefits.

Types of Evidence to Prove a Bona Fide Marriage

• Joint financial records (bank accounts, tax returns, insurance policies).
• Joint leases, mortgages, or utility bills showing shared residence.
• Photos from the wedding, vacations, and everyday life together.
• Affidavits from family and friends confirming the authenticity of the relationship.
• Evidence of major life events together (children, travel, medical decisions, etc.).

Same-sex couples should be prepared to provide as much evidence as possible, especially if they are from countries where same-sex relationships are not widely accepted or legally recognized.

Challenges Faced by Same-Sex Couples in the Green Card Process

While same-sex couples are legally eligible for green cards, they may face unique challenges during the process, including:

1. Countries That Do Not Recognize Same-Sex Marriage

In some countries, same-sex marriage is not legally recognized, which can create significant challenges when obtaining marriage documents or applying for a visa based on marriage. Without legal recognition, same-sex couples may face bureaucratic hurdles or outright denials when trying to register their marriage, making it difficult to proceed with a family-based immigration petition.

For same-sex couples who cannot legally marry in the foreign spouse’s home country, an alternative option is to marry in the United States or in a third country where same-sex marriage is legally recognized. Many couples choose to travel to a jurisdiction that allows same-sex marriages, ensuring that they obtain a valid marriage certificate that will be recognized by U.S. Citizenship and Immigration Services (USCIS) for immigration purposes.

2. Facing Bias or Discrimination in the Interview Process

Although USCIS officers are trained to treat all applicants equally, implicit bias may still exist, particularly in cases involving same-sex couples. While immigration laws do not distinguish between same-sex and opposite-sex marriages, some couples may face additional scrutiny or be asked uncomfortable questions during their green card interview. This can stem from cultural biases, a lack of familiarity with LGBTQ+ relationships, or assumptions about traditional marriage roles.

If a same-sex couple encounters an interviewing officer who appears hostile or biased, they have the right to request a supervisor to oversee the interview or seek legal assistance. Working with an experienced immigration attorney can help ensure that the interview remains fair, professional, and free from discrimination. If necessary, legal counsel can file a complaint or appeal in cases where bias may have affected the outcome of the petition.

3. Lack of Family Support in Certain Cultural Backgrounds

In some cultures, same-sex marriages are not widely accepted, which can create additional challenges for couples going through the immigration process. Family members may be unwilling or unable to provide support, making it difficult to submit affidavits from relatives as evidence of a bona fide marriage.

When family support is not an option, affidavits from friends, employers, or religious leaders who can attest to the couple’s relationship can be valuable. These individuals can provide statements detailing their observations of the couple’s relationship, their shared life, and the authenticity of their marriage. Other supporting evidence, such as joint financial records, photos, and communications, can also help demonstrate that the marriage is genuine, even without family affidavits.

Can Same-Sex Spouses Apply for a Fiancé(e) Visa?

Same-sex couples can apply for a K-1 fiancé(e) visa, just like opposite-sex couples. The K-1 visa allows a foreign fiancé(e) of a U.S. citizen to enter the United States for the purpose of marriage. To qualify, one partner must be a U.S. citizen, and the couple must intend to marry within 90 days of the foreign fiancé(e) entering the country.

The K-1 visa process is similar to the marriage-based green card process, but with one key difference: The couple must get married first before the foreign spouse can file for adjustment of status to obtain a green card. Once married, the foreign spouse can submit Form I-485, Application to Register Permanent Residence or Adjust Status, to transition from a K-1 visa holder to a lawful permanent resident.

Contact BBA Immigration

Same-sex couples have full and equal rights to apply for a marriage-based green card in the United States. However, they may still face unique challenges related to cultural biases, international laws, and proving a bona fide marriage.

To strengthen their application, same-sex couples should provide strong documentation, prepare thoroughly for their interviews, and seek legal guidance if necessary. By understanding the process and potential challenges, couples can successfully navigate the green card process and build a future together in the U.S.

If you need assistance with a same-sex marriage green card application, the BBA Immigration Law Firm is here to help. Our experienced immigration attorneys can guide you through the process, help gather strong evidence, and provide legal support if any issues arise. Contact us today for expert immigration assistance.

Source:

uscis.gov/family/same-sex-marriages