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Gay Marriage Immigration Attorney in Los Angeles
Same-Sex Immigration Law FAQs
Following the Supreme Court’s decision to overturn Section 3 of the Defense of Marriage Act (DOMA), same-sex couples who qualify may now file for the same federal immigration benefits as straight couples. However, the new law does not make obtaining U.S. residency any less complicated or confusing. The following questions may provide further insight into eligibility requirements for same-sex immigration. If you or your spouse is a foreign national seeking permanent resident status in the U.S., it is important to contact an experienced immigration lawyer who can provide you with the answers and guidance you need for success.
What immigration benefits are available to same-sex, bisexual, or transgender spouses?
My Form I-130 petition or application was denied before DOMA was overturned. Should I reapply?
Will my partner and I have to move to a marriage equality state before applying for a green card?
I am an American citizen, but my partner is undocumented. Can we apply?
Does a domestic partnership or civil union qualify as a marriage?
My partner lives in a country where same-sex marriages are not recognized. Do we have to get married in a marriage equality country to immigrate?
My spouse is transgender; will that negatively impact his or her eligibility for immigration benefits?
What are some ‘red flags’ of marriage fraud?
How can I find out whether my spouse or I qualify for same-sex immigration benefits?
What immigration benefits are available to same-sex, bisexual, or transgender spouses?
Any application or petition will not be evaluated based on the lesbian, gay, bisexual, or transgender nature of your marriage.
Same-sex spouses are eligible to receive the same benefits as straight spouses. These benefits include obtaining a green through your spouse, eligibility for permanent residence for battered spouses under the Violence Against Women Act (VAWA), eligibility for naturalization, and provisional waivers for foreign nationals who entered the U.S. without immigration inspection, etc. Contact a knowledgeable attorney to determine all the benefits you may be eligible to receive.
My Form I-130 petition or application was denied before DOMA was overturned. Should I reapply?
If your petition or application was denied prior to February 23, 2011, the U.S. Citizenship and Immigration Services (USCIS) will reevaluate petitions or applications that were denied based on DOMA. If you have not been contacted by USCIS about the reopening of your case, you may contact USCIS via email to inquire about your pending petition.
If your Form I-130 petition or another type of application, such as work authorization, was denied prior to February 23, 2011 based on DOMA, you will need to contact an attorney by March 31, 2014 to reopen your petition.
If you are unable to meet the above deadline, you may submit a new petition or application.
Will my partner and I have to move to a marriage equality state before applying for a green card?
That won’t be necessary. Your eligibility will depend on whether you were married in a marriage equality state or country.
I am an American citizen, but my partner is undocumented. Can we apply?
Generally, a person who is in the U.S. unlawfully cannot apply from within the U.S. However, if he or she entered the country and was inspected by a U.S. immigrant official, he or she may apply for a green card to “adjust status.”
If your spouse entered the U.S. without inspection (EWI), the applicant must either first return to his or her home country in order to apply or apply for a provisional waiver. If it is necessary for your spouse to file for a provisional unlawful presence waiver before leaving the U.S. you will need to work with an experienced immigration attorney to successfully complete this complex waiver packet.
Any application or petition will not be evaluated based on the same-sex nature of your marriage.
Does a domestic partnership or civil union qualify as a marriage?
Unfortunately, the USCIS will only count a relationship that is legally considered a marriage in the state or country where it took place. It will improve your eligibility for immigration to marry in a marriage equality state or country.
My partner lives in a country where same-sex marriages are not recognized. Do we have to get married in a marriage equality country to immigrate?
If unable to marry in a state or country where same-sex marriages are recognized, a U.S. citizen may sponsor a foreign national for a K-1 visa, which allows a foreign national to marry a U.S. citizen within 90 days after arriving in the U.S. The couple will have to provide evidence of a “bona fide” relationship, such as shared finances, memories, children, etc. Once the couple has married in the U.S., the foreign national may file Form I-485 to adjust his or her residency status.
My spouse is transgender; will that negatively impact his or her eligibility for immigration benefits?
In order to be eligible for immigration benefits based on a marriage between a transgender individual and another individual, the transgender individual must have legally changed his or her gender before marrying an individual of the other gender, the marriage is recognized as heterosexual under the law where the marriage took place, and that same-sex or transgender marriage is not barred where the marriage took place.
As with any marriage based immigration, the couple must provide evidence of a “bona fide” marriage.
What are some ‘red flags’ of marriage fraud?
USCIS expects some marriages to be fraudulent attempts at gaining U.S. residence, so it will scrutinize any application that shows signs of fraud. Some of the “red flags” that same-sex spouses may have to contend with include:
- whether there is enough proof of the marriage. If a same-sex couple keeps their marriage a secret from friends and family for fear of discrimination or negative reactions, it may be difficult to provide evidence of a bona fide marriage.
- Was one partner married to a member of the opposite sex earlier in their life?
In order to secure residency for you or your spouse, please contact a same-sex immigration attorney to help you successfully navigate the filing process and to work on your behalf to defend your case.
How can I find out whether my spouse or I qualify for same-sex immigration benefits?
We help clients nationwide and worldwide. Many of our same sex partners have had very positive experiences with USCIS officers during their interviews. It’s clear that USCIS is training their officers well in this area. Nevertheless, even the most routine AOS interview can take a bad turn quickly and randomly. Sometimes this can be because a person inadvertently filled out their forms incorrectly or because they did not not they needed a birth certificate that showed their parent’s name– not just the short form. Other times, one spouse doesn’t remember the name of a person in a picture and the officer concludes there are grounds for fraud. Your attorney will prepare and inoculate against all of these traps. It’s a worthy investment for a benefit that will change your life.
Please call the Immigration Law Office of Los Angeles, P.C. at (800) 792-9889 to speak with a knowledgeable same-sex immigration attorney. Our legal team has years of experience assisting clients through the complete application process.
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