Same-sex couples have the same immigration rights in the U.S. as heterosexual couples. However, obtaining citizenship through marriage can be more of a challenge, as our Miami beach immigration lawyer explains.
After the Defense of Marriage Act was deemed unconstitutional by the U.S. Supreme Court in 2013, same-sex couples can enjoy the same immigration benefits as opposite-sex couples. Our Miami beach immigration lawyer has handled numerous cases involving gay marriage and immigration, so he knows that obtaining citizenship through marriage for a same-sex couple can be more challenging.
Immigration Through Marriage
The immigration process works the same way for opposite-sex and same-sex couples. When a non-citizen marries a U.S. citizen, that individual becomes eligible to apply for a Permanent Resident Card (commonly called a green card). A non-citizen does not automatically become a U.S. citizen through marriage.
Establishing eligibility for a green card is lengthy and can take anywhere from nine months to three years. It can take longer if the sponsoring spouse is a green card holder and not a U.S. citizen.
How Does Immigration Through Marriage Work?
A couple seeking to gain U.S. citizenship for a non-citizen through marriage must follow the process set by the United States Citizenship and Immigration Service (USCIS).
Establishment of a Lawful Marriage
Your marriage must have occurred in a country where same-sex marriage is legal. If you were married in a place where same-sex marriage is illegal, such as India, some states in Mexico, and others, you must be married in the United States if you both live here. You can apply for a fiance visa so that your fiance can come to the U.S. for the marriage.
To establish your marriage with the USCIS, you must provide the following:
- The U.S. citizen’s birth certificate
- Marriage certificate
- Joint utility bills or lease document
- Photos from your wedding
- Filing fee
Proof of Eligibility
Next, the non-citizen spouse will apply for a green card by providing documentation to the USCIS that proves their eligibility for residency. You will need to provide documentation that establishes the following:
- The foreign nationality of the non-citizen spouse
- Proof of legal entry into the U.S.
- Medical evaluation
- Affidavit of Support from the U.S. citizen spouse
- Filing fee
- Biometrics fee
Interview with USCIS
Once the paperwork has been completed and submitted, the non-citizen spouse will be interviewed by a USCIS representative to establish their eligibility for green card status. Getting to the interview portion of the process can take up to a year.
During the interview, the USCIS official will ask both spouses questions about their relationship to establish that the marriage is legitimate and not just for immigration purposes.
After the interview, the petition can be approved immediately or within a few days. Once your case is approved, you will receive a notice by mail, and the non-citizen spouse will receive a physical green card in a few weeks.
Obstacles For Same-Sex Couples In Immigration
Although the rights and responsibilities are the same for same-sex and heterosexual couples trying to gain residency through marriage, same-sex couples can face unique challenges. Our Miami beach immigration lawyer has seen the following issues arise in same-sex marriage cases.
Before same-sex marriage was legal in all 50 states, many couples chose to have a civil union ceremony. These unions are not legally binding for immigration purposes. Couples must convert the civil union to marriage or have a separate marriage ceremony to be considered for immigration benefits.
Issues With Family
Part of the green card application process is establishing the legitimacy of the same-sex marriage. Marriage photos may not include one or both spouses’ parents. When family members are opposed to the wedding because of personal feelings, one spouse may have limited information about the family of the other spouse. These family dynamics can be explained during your USCIS interview.
Past Opposite-Sex Marriage
It is not uncommon for a same-sex spouse to have a history that includes an opposite-sex spouse. While this history may cause the interviewer to ask some questions, it is not a reason for concern. Fully disclose any past marriages and explain your particular circumstances.
Casais & Prias Can Guide You Through The Immigration Process
As you can see, gaining a marriage green card is a lengthy, complex process. If you fail to submit the required documents on time, your spouse’s citizenship can be delayed or even denied. Contact our Miami beach immigration lawyer to discuss your case, and let us help you establish citizenship for your spouse.