In the past, U.S. Citizenship and Immigration Services (USCIS) only recognized heterosexual marriages. Same-sex spouses did not qualify for family-related green card sponsorship. However, same-sex marriage is now legal in all 50 states, thanks to a Supreme Court decision.
Gay and lesbian couples may apply for a permanent resident card, commonly known as a green card. Same-sex married couples must meet the same qualifications as heterosexual couples. Unfortunately, same-sex couples may face additional obstacles.
Applying for a Marriage Green Card
In 2013, President Obama directed USCIS to evaluate immigration visa petitions involving same-sex marriages the same as those filed on behalf of heterosexual spouses. Sponsoring a spouse for a green card involves three stages.
Establish a Lawful Marriage
Your marriage must be legal in the country where it took place. If you got married abroad in a country that does not permit same-sex marriage, you will need to get married in the United States if you both live here. If your spouse lives abroad, apply for a fiance visa first.
Form I-130 (Petition for Relative) serves to establish your marriage with USCIS. Along with the $535 filing fee, include:
- The sponsor’s U.S. birth certificate or green card
- Your marriage certificate
- Joint lease or utility bills
- Photos of your wedding
Proof of Eligibility
Apply for a green card by filing Form I-485 (Application to Register Permanent Residence or Adjust Status). This step will also provide proof of eligibility for a green card through marriage. This form must be accompanied by documents that establish:
- Foreign nationality
- Legal entry into the United States
- Medical evaluation with a USCIS-approved doctor
- The sponsor’s Affidavit of Support
This step requires a $1,225 filing fee and an $85 fee for biometrics. U.S. citizens sponsoring a spouse may file Form I-130 and Form I-485 concurrently. Green card holders must complete these steps separately.
After submitting Form I-486, it can take almost a year for USCIS to process it. There are multiple ways for you to check the status of your green card application.
USCIS Interview
The last step is to attend an interview. Assuming both spouses are U.S. residents, they both attend the interview. USCIS will notify you of the date, time, and location.
Preparing for your interview can help ease any concerns you may have. In your interview, a USCIS officer will go over the details of your petition and ask questions about your relationship. The purpose of the interview is to ensure you are still eligible for a marriage green card and your marriage is authentic.
Your petition can be approved immediately following the interview or within the next few days. After your case is approved, you will receive notice by mail and a physical green card will follow within three weeks.
Obstacles to Same Sex Marriage Green Cards
Same-sex marriage was made legal in all 50 states on June 26, 2015. While gay and lesbian married couples follow the same green card application process, they may encounter unique obstacles.
Civil Unions
Before the legalization of gay marriage, many same-sex couples held civil union ceremonies. These unions provided some marriage benefits but not immigration benefits. A couple who joined a civil union may not apply for a green card.
Civil unions do not automatically convert to marriages. Couples can upgrade to marriage through conversion or marriage to be eligible for a green card through marriage.
Estranged Family Members
As part of your Form I-130 submission and your USCIS interview, you will need to prove that your relationship is legitimate. Couples may support their marriage with:
- Correspondence with extended family members
- Family vacation photos
- Wedding photos showing both your family members as guests
This may be a difficult undertaking for same-sex married couples who have fallen out with homophobic parents or family members who do oppose gay marriage. If you do not have a relationship with your in-laws, explain your situation to the USCIS officer at your interview.
Past Heterosexual Relationships
While applying for a green card, you must disclose past marriages. Be completely honest when discussing any heterosexual marriages. This will not immediately cast doubt on your current marriage.
Suspicion may arise if either spouse applied for a green card in the past while married to a heterosexual partner. Likewise, past or current marriages may be considered fraudulent if the sponsoring spouse was previously granted immigration benefits through marriage.
Your sexual orientation may be less important than proving you are not married for the sake of immigration benefits.
How Long Does It Take to Get a Green Card Through Marriage?
The entire process of getting a green card through marriage may take between nine months and three years. The process takes longer when the sponsoring spouse is a green card holder instead of a United States citizen.
To prevent additional delays, you may consider working with an attorney or an immigration filing service. Any missing information or conflicting information may make it difficult for USCIS to make a decision. In that case, you will receive an official request for evidence (RFE).
What if a Same Sex Couple Has Children?
A child born abroad does not need to be genetically linked to a U.S. citizen to gain legal status in the United States. The State Department recognizes that families have children by various methods. Children born abroad may accompany a legal parent to the United States and petition for green card status. This includes families who utilized:
- In vitro fertilization
- Surrogacy
- Adoption
Can You Lose Your Green Card if You Get Divorced?
Roughly half of all marriages end in divorce. If you get divorced before or while applying for a same-sex marriage green card, you may lose your eligibility. However, if you successfully obtain permanent residency and then get divorced, your green card will not be revoked.
