I am gay ( or lesbian) and legally married to my U.S citizen partner. Can I get a green card?

If you are married to a U.S. citizen, you may be able to apply for permanent residency in the United States, based on your marriage (a so-called “marriage green card”). The application process is complicated, requires a lot of preparation of documents and both spouses most likely will have to attend an interview by the U.S. Citizenship and Immigration Services (USCIS).

Can Same-Sex Couples Apply for Marriage Green Cards?

In 2013, the Supreme Court of the United States (SCOTUS) ruled that Section 3 of the Defense of Marriage Act was unconstitutional. The Court held that the federal government cannot discriminate against same-sex couples for purposes of “determining federal benefits and protections.”

That ruling resulted in the U.S. Citizenship and Immigration Services (USCIS) processing the immigration visa petitions for same-sex married couples in the same manner as the petitions “filed on behalf of an opposite-sex spouse.”

Added to the 2013 SCOTUS decision was the 2015 SCOTUS decision ruling that same-sex marriage is a fundamental constitutional right under the 14th Amendment to the U.S. Constitution. Even after these landmark decisions, there are still some challenges same-sex couples face in the green card application process.

What are Some Common Challenges Same-Sex Couples Face in the Green Card Application Process?

The most important challenge that same-sex married couples have when they apply for a green card is the same challenge that all married couples face during this process – proving to USCIS that they have a bona fide marriage relationship. Some issues that may come up for the same-sex couples are:

(1) An existence of a previous opposite-sex marriage. That could trigger the USCIS to question whether the current same-sex marriage is a bona fide relationship. The more years that have passed since the opposite-sex marriage ended, and the shorter that marriage was, the less likely that marriage will affect the same-sex marriage application. Your lawyer would be in the best position to advise you how to present your marital history at the interview.

Of course, you must also prove the previous marriage was terminated by submitting a divorce decree, proof of annulment, death certificate, or other documentation that the marriage was terminated. You will need proof of termination of all your previous marriage and all of your spouse’s previous marriages as well.

(2) If your marriage is kept secret. Some same-sex married couples keep their relationship secret. Some of their friends may not even know they are married, and it is likely their parents and siblings do not know about it. You might have to explain to USCIS why you might not be ready to disclose the marriage to your families.

(3) Your finances are not co-mingled. Many same-sex married couples, as well as many opposite-sex married couples, keep their finances separate. They don’t have joint bank accounts, they may not have both names on a mortgage or deed to their home or even on rental agreements. While such joint documentation is only one factor in assessing whether your marriage is bona fide, USCIS might question why you are keeping your accounts separate – especially if you have been married for a while.

How to Prove a Bona-Fide Relationship‍

For immigration purposes, a “bona fide marriage relationship” means the couple married with the intent to live as a married couple. They did not marry solely for the purpose of receiving immigration benefits. They must also prove that the marriage is legally valid – that all previous marriages ended in divorce, that you were married properly and the procedure was followed.

Despite the challenges of proving a bona fide relationship between same-sex married couples, the immigration lawyers at the Law Offices of Spektor, Spektor & Berman have helped thousands of same-sex couples obtain a green card. A “same sex marriage green card” is no different from a green card that is issued after the approval of the application based on an opposite sex marriage: a marriage is a marriage, whether the spouses are same-sex or opposite-sex – that’s the law. Some of the issues that you might want to pay attention to are:

• Your spouse’s knowledge of your parents. This is often difficult for same-sex married couples who may keep their marriage secret from their parents out of fear that the parents will disapprove and may refuse to have a relationship. The USCIS is aware of this. You might need to explain why your parents should not be contacted by the USCIS.
• Proving cohabitation if there are no employment or lease documents. Although cohabitation is not an absolute requirement and other arrangements can be explained, it helps if you can prove cohabitation. Even if you do not have employment or lease documents, you may prove cohabitation if you have any documents that show you share the same address, filed your taxes as married, filing jointly, or have affidavits from family and friends, attesting to your cohabitation.
• Proving a legally-valid marriage. A marriage is legally valid if same-sex marriage was recognized as lawful in the place where the marriage took place. Since same-sex marriages are valid in all states of the U.S., if the marriage took place in any State in the United States, it will be recognized as legally valid. If the marriage took place in a country that does not allow same-sex marriages, if one partner is still living in that country, there may be a way to get a visa for purposes of traveling to the U.S. and entering into a legally valid marriage – a fiance visa.
• Concerns about possible bias with USCIS officers. USCIS adjudication officers that will be conducting your green card interview receive sensitivity training for the purposes of working with same-sex couples without bias.

For more details about how we can help with your same sex marriage green card application, Call us at (646) 543-0745 for a consultation. You may also use our “Contact Us” form at the bottom of this page. One of our immigration attorneys will reply to you – often the very same day.