August 25, 2015 Douglas Lightman

DOMA and Same Sex Marriage

As a result of the Supreme Court’s holding on June 26, 2013 that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, Janet Napolitano, the Secretary of Homeland Security, directed US Citizenship and Immigration Services (USCIS) to adjudicate green card applications filed in connection with same-sex marriages in the same manner as those filed in connection with opposite-sex marriages.

The essence of the Supreme Court’s holding is that same-sex couples who are legally married deserve equal rights to benefits under federal law that are available to all other married couples.  As a result, immigration benefits available to spouses of US citizens, long term permanent residents, and nonimmigrant visa holders are available to all spouses, regardless of whether the marriage is an opposite-sex marriage or same-sex marriage, as long as the marriage is legal.

The particular benefit that we’re going to focus on for purposes of this article, is the green card through marriage process in connection with a same-sex marriage.  Please find below a series of Q &As that we think will be helpful in better understanding the marriage green card process from the perspective of a same sex marriage.

What was the law prior to the Supreme Court’s holding?

Prior to the Supreme Court holding, US citizen or lawful permanent resident spouses of foreign nationals in same-sex marriages could not sponsor their foreign national spouses for a green card. In other words, previously, if a green card application was submitted in connection with a same-sex marriage, it would be denied. However, it should be noted that over the past several years, USCIS held some of these cases in abeyance (in other words, they didn’t approve or deny) as they waited on this ruling.

Will the foreign national spouse be immediately eligible for a green card?

The foreign national spouse will be immediately eligible for a green card as long as the sponsoring spouse is a US citizen. If the sponsoring spouse is a lawful permanent resident, the process is a bit longer (2-4 years), just like it is for couples in an opposite-sex marriage.

What if the foreign spouse is out of status?

If the foreign national spouse is out of status, he/she can still obtain a green card as long as the other spouse is a US citizen (not a lawful permanent resident) assuming the foreign national spouse entered the US legally and there aren’t other factors at play. It’s best to discuss your personal situation with an immigration lawyer.

What if we were married in a state that recognizes same-sex marriage but we now live in a state that does not recognize same-sex marriage?

Generally, when evaluating an application, USCIS looks to the law of the location where the marriage took place when determining whether the marriage is valid for immigration purposes, although there are limited exceptions where the law of the state of residence in addition to the law of the state of where the marriage took place are taken into consideration.

How will green card applications submitted on behalf of a same-sex spouse be treated compared to green card applications submitted on behalf of an opposite sex spouse?

Both types of applications will be treated exactly the same.

Has USCIS already started approving these cases?

Yes, surprisingly USCIS moved very quickly on this and approved the first same-sex permanent residency application based on marriage on July 1, 2013.

Can I still sponsor my same-sex spouse if they live outside of the US?

Yes, you can. If your spouse resides out of the US, you and your spouse would navigate the process through immigrant visa route. For more info on this process, please see the following page on our site:

What if the sponsoring spouse is not a US citizen, but rather a permanent resident?

In this scenario the foreign spouse would not be immediately eligible for a green card, rather he/she might be facing a longer wait based on the Department of State’s visa bulletin. In addition, if the foreign spouse is out of status in the US, sponsorship by way of a permanent resident spouse would be problematic. If there are status issues, it might be best to wait for the permanent resident spouse to become a US citizen. Discuss this with your immigration lawyer.

What type of documentation needs to be submitted as part of the application?

The documentation to be submitted as part of the green card through marriage process based on a same-sex marriage is the same documentation that is to be submitted as part of the green card through marriage process based on an opposite sex marriage. For more info on the types of documentation that will have to be submitted, please see the following link on our site: Green Card Marriage Documentation.

How long will it take?

From the time the application is submitted, the process will take 4-7 months, or more, depending on various factors, such as the local office wait time and details related to the case.

Can my foreign spouse obtain work and travel authorization?

Yes, as part of the green card application, your foreign spouse can submit applications for work and travel authorization. For more on this matter, please see the following link on our site: Work and Travel Authorization.

What are some things that can negatively impact my case?

There are a wide variety of items that can result in negative consequences as it relates to the green card marriage process, regardless if it’s based on a same-sex marriage or opposite sex marriage. The following are examples of such items: entering the US illegally, engaging in immigration fraud or misrepresentation, conviction of certain crimes, being subject to the 2-year home residency requirement as part of the J-1 status, entering the US as a crew member. As the list is not exhaustive, it’s best to fully discuss your case with your lawyer to determine if there’s anything relevant to your background that may result in negative consequences.

What if we’re not married and my partner doesn’t live in the US?

Can I sponsor him/her for a fiancé(e) visa? The good news is that the Supreme Court’s holding is not limited merely to the green card through marriage process, but also extends to all other immigration benefits as well, such as the fiancé(e) visa. So, if your partner doesn’t live in the US and you’re not yet married, you may be able to sponsor him/her for a K-1 fiance(e) visa. For more on the K-1 fiance(e) visa process, please see the following:  K-1 Visa Process.

What are the fees?

For more info on the fees associated with this process, please see the following link on our site:  Green Card Marriage Fees.

What else do I need to be aware of?

There is really nothing more to be aware of outside of what every couple should be aware of when navigating the green card through marriage process. In order to better grasp the items to be aware of as part of the marriage green card process, we STRONGLY encourage you to review the following pages and posts on this site:

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Douglas Lightman

The award-winning Lightman Law Firm was founded by Douglas M. Lightman, Esq. Mr. Lightman has extensive experience in immigration law and international matters through both work and personal experience.Prior to forming Lightman Law Firm, Mr. Lightman spent several years at an international tax consulting and compliance firm where he focused on international tax consulting and cross border transactions. Mr. Lightman is a United States trained lawyer who received his law degree from Brooklyn Law School and is a member in good standing of the Bar of the State of New York and a member of the American Immigration Lawyers Association, the world's largest organization of immigration lawyers.To discuss your possible case with Mr. Lightman or another immigration lawyer from Lightman Law Firm LLC, call (212) 643-0985 or fill out the consultation request form on your right. A representative of our firm will contact you shortly upon review of your request.