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The End of DOMA: What Your Family Needs to Know

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General information, such as that provided below, does not constitute individual legal advice nor is it meant to take the place of individualized legal advice; however, we do hope to answer some of the questions we hear most often. You should always consult with a qualified immigration attorney about the individual facts of your case before making any decisions about your particular situation.

What did the Supreme Court say about DOMA?

The U.S. Supreme Court held that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional. Section 3 of DOMA was a federal law that limited federal marriage recognition to different-sex couples. Because immigration law is federal, DOMA prevented lawfully married lesbian and gay couples from obtaining lawful permanent residence (“green cards”) through marriage. Now that DOMA has been struck down, American citizens and lawful permanent residents can submit green card applications for their same-sex spouse.

Can LGBT couples get green cards now?

Yes, most families will now be able to obtain a green card.

With the end of DOMA, LGBT families will be treated the same under immigration law as different-sex immigrant families. Immigration law is complicated and there will still be barriers for some couples, but the systemic discrimination that prevented our families from receiving the same respect under the law as others has ended. Green card applications will no longer be denied solely because a couple is lesbian or gay.

Do we have to live in a marriage equality state to apply for a green card?

No. If you have a marriage that is valid in the state or country where you were married – regardless of where you live – that marriage makes you eligible to apply for a green card.

The United States Citizenship and Immigration Services (“USCIS”) looks to see whether you entered into a valid marriage in the state or country where you married. While some federal benefits may only be available to married couples if you live in a state which recognizes your marriage, fortunately, this is not the case for immigration benefits.

We married in Canada. Do marriages from outside the U.S. count?

Yes. As long as the marriage was validly entered into, it is sufficient for immigration purposes. In fact, Edie Windsor, the plaintiff in the Supreme Court case, married her wife in Canada.

Does a civil union or domestic partnership count?

The answer to this is not entirely clear, and we hope to have guidance on this soon. If it is possible for you and your partner to marry, you may be better off marrying because you could then feel more secure that your relationship will be recognized for immigration purposes without having to wait for further guidance.

My partner can’t get a visa to get to the United States, and we can’t marry in his/her country. What are our options?

U.S. citizens can file fiancé/e visa applications for committed partners. This application requires the couple to demonstrate that they have a “bona fide” relationship. When the visa is granted, the couple is required to marry within 90 days of the foreign partner’s entry into the US. Once married, the couple can file the marriage-based application from within the United States.

For families that can travel to another country that has marriage equality, another option would be to  marry there and then have the U.S. citizen  sponsor the foreign national spouse for a green card through consular processing in his/her home country.

We live in exile. How soon can we come home?

For couples in exile together, the U.S. citizen could file for a fiancé/e visa or the couple can marry and the foreign spouse can consular process. It will take several months before a visa is actually issued, but processing times vary by consulate. Therefore, we cannot say exactly how long it will take before families are able to return to the United States. Keep in mind that once a foreign national becomes a green card holder, s/he must live primarily in the U.S. If you are not ready to move home, it may be too soon to apply.

Once I apply to sponsor my spouse, how long will we have to wait until s/he can work?

For couples who live in the United States together, it is common to file an application for work authorization along with the application for lawful permanent residence. Processing times vary throughout the U.S., but generally employment authorization documents (EADs) are issued within 90 days, and marriage-based interviews are generally scheduled within 9 months after filing.

My partner is here on a work visa. Is a marriage-based visa better?

It depends. In general, marriage-based petitions are adjudicated quicker than many other applications for lawful permanent residence. Employment-based petitions are complex, with most categories requiring the employer to prove that there are no U.S. workers able, willing, and qualified to fill the position. There is also an annual cap on the number of employment-based green cards that can be issued, which has created years-long backlogs in several employment-based categories. Since there is no limit to the number of green cards that can be issued to the spouses of U.S. citizens, a marriage-based petition may result in a green card much more quickly. However, in a marriage-based case, the American spouse has to file an affidavit of support proving that he or she can maintain the applicant at above 125% of the poverty level. So, in some cases, it may make sense to pursue lawful permanent residence through an employer if that’s an option. Regardless of whether a foreign national obtains a green card through a marriage-based petition or through a different avenue (like an employer), he or she can apply to become a citizen after three years (rather than five) if married to an American citizen.

I am undocumented, my partner is American. Can we apply?

It depends. Under U.S. immigration law, the general rule is that a person who is in the U.S. without lawful status cannot change from within the U.S. from being here unlawfully to being here lawfully. One significant exception to this rule is that the spouse of a U.S. citizen can apply for a green card from within the U.S. (to “adjust status”) as long as he or she entered the U.S. through a valid port of entry, in other words, following inspection by a U.S. official.

For those undocumented individuals who entered the U.S. without inspection (“EWI”), the applicant must return to his or her home country to apply. In the past, this was unworkable for most families, because once the applicant left the country he or she was barred from returning for many years. There is now a waiver available which can minimize the length and uncertainty of that wait.

We have children. How will this affect them?

Generally, when a U.S. citizen files an application for lawful permanent residence for a spouse, he or she can also file for the spouse’s children as “step-children.” Even if you don’t see your children as “step-children,” if the foreign spouse is the biological parent of the children, filing a step-child petition for lawful permanent residence will probably provide the most efficient way to obtain their green cards. You and your partner must have married before the child turned 18, and the child must currently be under 21 and unmarried in order to get a green card at the same time as the parent’s marriage-based green card.

What about the immigration reform bill?  Do we need to be in it now?

As long as USCIS and the Department of State interpret the Supreme Court decision as they should, we should not need further legislative action to provide relief to married lesbian and gay couples.

Immigration reform is still important for LGBT people, however. There are critical protections in the bill for asylum seekers, alternatives to detention for LGBT detainees, and procedural protections for those who are detained, including limiting the use of solitary confinement for LGBT detainees. The bill also provides a pathway to citizenship for those who are in the U.S. without lawful status, at least a quarter-million of whom are LGBT. The bill further provides an accelerated path to citizenship for DREAMers, young people who came to the US as minors, grew  up as Americans, and whose movement for change has been led by many brave LGBT people.

Do we need a lawyer?  Do we need a lawyer that specializes in LGBT issues?

It’s always a good idea to have a lawyer when applying for an immigration benefit and  spousal petitions can be very complicated. Immigration Equality maintains a referral list of private immigration attorneys who have an understanding of LGBT issues. To request an attorney referral from Immigration Equality, please fill out the Contact Us form.

Immigration law is very complicated. While many people successfully file marriage-based applications for lawful permanent residence without a lawyer, we generally recommend that people should seek out representation by qualified counsel.

Will Immigration Equality be our lawyer?

With an estimated 36,000 same-sex binational couples living in the United States and many more separated or living in exile abroad, Immigration Equality’s legal team cannot personally represent all the families who will be applying in the days and months ahead.

We have a referral list for LGBT-friendly private immigration attorneys which we are happy to share. We are continuing to provide technical support, training, and mentoring for these attorneys and will advocate with the relevant agencies if we hear of problems with applications after the DOMA decision. We are working closely with attorneys on our referral list to ensure they have all the information necessary to help LGBT couples. Immigration Equality maintains a referral list of private immigration attorneys whom we have trained on these issues, and we are collaborating with the American Immigration Lawyers Association to make those training materials available to all reputable practitioners.

What can we do today to start preparing for our application? What kind of things do we need to gather?

It is important that you and your partner be legally married. As with any marriage-based petition for lawful permanent residence, you will need to prove to USCIS that your marriage is “bona fide,” that is that you married for love and not merely to get an immigration benefit. Thus, USCIS will look for proof that your relationship is real, including proof that you: live together; share finances; hold each other out as a couple; spend holidays together, in some cases raise children together, etc. It will be helpful to begin to put this type of evidence together. For more information about the procedural requirements of filing for the green card please, see our FAQ on adjustment of status.

Does Immigration Equality plan to close? Why do you keep asking for donations?

Over the months ahead we will keep pushing the Obama administration to issue green cards without delay, and troubleshooting problems for families in exile, especially those with young children.  We will keep training private attorneys and government officials in how to handle special issues that arise for LGBT families.  We will keep taking and placing asylum cases for people who are fleeing for their lives.  We need your support to do all of these things. Immigration Equality expects to answer thousands of requests for help over the next few months. We will do that – along with training our network of attorneys – with a tiny in-house legal staff and a limited budget. Your support ensures that we can connect everyone to an LGBT-friendly attorney, trained by our team, who can help you apply. Immigration Equality’s board of directors has undertaken a strategic planning process to determine what’s next for the organization.  We will not close our doors until every LGBT family is treated equally under our immigration laws, and asylum seekers have the safety and security they need.

74 Responses to The End of DOMA: What Your Family Needs to Know

  1. Pingback: Wow, I can’t believe it happened! | Field notes from a noticer

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  5. Danny says:

    This is really great news. I have developed a deep love with my future partner. Now I know that I can petition him on a fiance visa. A real blessing for us! Love always triumphs over evil!

  6. Doron says:

    A question: If a non-citizan gets a H1B/J1/L1 visa, will his same-sex spouse be now entitled to H2/J2/L2 like non-american straight couples are?

  7. Zak Wagner says:

    Rachel: We love you and your team, and this is only the beginning, not the end. Great strides have been made because of IE’s efforts. Now, my engaged partner for 4 years, whose legal residence in the USA ends at the end of August, we can get married and put an end to the undertainty that has hung over us all this time. We did not get married, because if he had to leave and I could not move overseas, then where would we be. We are so happy and having a celebration dinner tonight and starting our immediate plans to get married, ASAP. I will be on the call tomorrow, and look forward to some great information. Yes, ask for donations. There are lots of US states where we are hated, and we don’t/ can’t live in one of the “legal states,” because of work. So, you get my vote of confidence and my continued donations. THANKS YOU GUYS!!!!!!!!!!! Zak

  8. Barry Saiff says:

    We are living in the Philippines and do not want to move to the USA. But I’d like my Filipino partner to be able to visit the USA with me. How can we make that happen? If we got married in, say, New Zealand, and then he applied for a tourist visa, would his marriage to me help or hurt, given that I live full time outside the USA?

  9. One of my gay clients sent me this link. I have practiced immigration and nationality law in Baton Rouge, Louisiana, for over 30 years. I have counseled many gay and lesbian clients during that time, and I have many gay and lesbian personal friends. My daughter is a licensed social worker in New Orleans who has been on boards of gay and lesbian organizations there and served as president of one of them. I am an Episcopalian, and one of our bishops, as I am sure you know, is a gay man. My son’s former priest in Maryland lived with her partner, and their photograph in the parish directory showed them as a couple. They were beloved and accepted in their parish. For these reasons, I would like to be considered by your organization as a LGBT friendly attorney and included in your directory. Sincerely, Jeri Ann Flynn

  10. Derek Burks says:

    I just had a question about my partner who lives in the Philippines. We are not legally married but have been together for 4 years. I have visted him yearly except this year since I was saving to move there once I can retire at 50 years old. With this new law and the ability to bring him here I am thinking about changing my plans. I live in Arizona which is a state that does not allow gay marriage. How would I go about getting a legal marriage to get him a green card before he is in the US? It is nearly impossible for him to travel here with all of the restrictions they lay upon the Philippines.

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  12. brian says:

    Not sure who wrote that article but there are quite a few misleading statements about how the immigration process works. They are fostering the misguided belief that marriage to a USC = visa which is absolutely not the case.

  13. Masa says:

    I am glad for the news but sad for me. I lost my American partner for almost 30 years last December.

  14. shayna says:

    My fiancee and I currently live overseas and are planning on moving to the US (I’m a citizen) If we get married in New York and quickly move from there will that be alright on a fiancee visa? I’m nervous because we have to right our intended address and if I write that it’s in a state where Gay marriage is illegal it will not be processed. Any suggestions? PS A HUGE congratulations to couples in a similar or more difficult situations!

  15. Kelly says:

    This is such a great news!!!!!!!!!! I’m so proud of those who stood up and fight against this giant DOMA monster!!!!!!! You all deserve a big round of applause!!!!!!!!!!

  16. Phill says:

    Ditto Derek! My Filipino partner and I have been “together apart” for nearly 9 yrs. We have been engaged for 5 years. I have traveled there 10 times and he has never been able to travel here on what should be a simple visitor visa. So we have the same basic question: is a K-1 fiance visa our best option now?

  17. Pingback: The End of DOMA: What Your Family Needs to Know | Immigration … « Cool Immigration

  18. José says:

    I’m very happy with this big good news! Came from Colombia many years ago, meet my partner in 2001 she’s a transgender we been living together as any couple for more of 12 years, struggling for the difficulty to get legal document to live and work in this beautiful country, she is an American Citizen and now will be able to get married and live with the same right as any heterexesual couple one again very happy big day for all LGTB community.

  19. Tony Burke says:

    My husband and I live in Asia, because he only has ever been able to obtain a 10 year non-immigrant visa. We were married in New York in April 2012 while on our second vacation in the US. I am an American citizen. We have always followed all the rules and we have visited the US three times together.

    Should we apply for his green card at the conservative leaning American Consulate, here in Asia, or travel to the US on his non-immigrant visa and hire an attorney and apply there for change of status and green card? Or does it matter?

  20. rodolfo giglioni says:

    hi i am going to italy and get married to my fiance there i still be able to come back to the USA together i have a green card for 23 years thank you for your effort best regard Rodolfo Giglioni

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  22. Rob says:

    Question: Can a bi-national same sex couple that is NOT currently married apply for a K1 (Fiance) visa with the expectation that we will travel to a marriage equality state to get married during our 90 day visa window, if the US citizen does *not* live in a marriage equality state? Does the US citizen’s state of residence have any bearing on the USCIS’s decision? Thank you for all you have done!!!

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  24. Nikos says:

    The road home seems to be near and so inviting. Now there is a chance that I no longer have to be in “exile” overseas with my foreign born partner, as I have been for almost 10 years. I have a chance now to be near and take care of my elderly parents on a daily basis, my mother who has MS, and see my siblings children grow up. Go to coffee or a movie with my high school and university friends. These simple things which were not an option for me the last decade because of DOMA and current immigration laws. You cannot build a stable home and future if you live in fear that your spouse will be deported. Ultimately you are left with only one choice, to leave your home. Today however, people like myself who are in a relationship with a foreign national have the hope that building a family and future in the U.S.A. can be a reality. You will not have to live in fear that your life can go up in smoke in an instant because of discriminating legislation. You can plan a future, buy a house, settle into and assist your local community, and be close to those you love and who need your assistance. Just be home! That simple but yet so unattainable! Today, I thank you fellow citizens of the USA, all those that worked so hard for equality, and Edith Windsor for her courage! You have made a great and just difference and given me hope that returning home to my family and friends is a real option! Today the world looks at the “land of the free” and smiles, and so do I! Today was a great step home!

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  27. Bruce Reeves says:

    My partner is a Mexican national and has a current tourist visa. Typically he is here 1-2 weeks a month on his visa spending time with me before returning to Mexico. I also visit there.

    Someone said that in order to file that he needed to plan to come to the US and be here 2-3 months before filing so it does not present the appearance of coming in as a tourist but with the intention to stay. Can you comment on that?

  28. Robert says:

    I am a disabled American in a wheelchair. My Canadian undocumented husband takes care of me 24/7. I have multiple orthopedic injuries, medical conditions and mental disorders due to an accident. PTSD agoraphobia, severe anxiety and dependent personality disorder – all medically documented. It would pose an EXTREME burden on my health and well-being if my husband had to return to Canada for ANY period of time. I have no other family and am not medically capable of caring for myself. I would literally die without my husband. We were legally married in Los Angeles almost 5 years ago. HOW do I start the paperwork to sponsor my husband? I currently do NOT work. We fall close to the poverty line. I do have a financial settlement due from my accident, but neither of us work, and do NOT currently meet the 125% threshold for income. What can we do?

    Thanks

  29. Thomas & Charanyoo (exiled in Beijing, China) says:

    Is it better to wait to apply consular processing if we have been married for more than two years? We are close to the two year anniversary (3 more months)

  30. Jamie says:

    I am so happy that LGBT U.S. citizens can now sponsor their foreign-born partners!! It’s a little bitter-sweet for me though. I’m Canadian and me and U.S. partner got married in Canada and then I sponsored him to move here. We both have good jobs in Canada now and don’t have any plans to move back to the U.S. soon. But, I still would like to get a Greencard and eventual U.S. citizenship. But, after beginning the paperwork yesterday (June 26th), I ran into my first road-block when looking at the Affidavit of Support (form I-864). A U.S. citizen can only sponsor you if they are Domiciled in the United States. However, they will allow you to still be Domiciled in the U.S. if you can prove ties there. My partner has a 401k and mutual fund in the U.S. and that is one of the ways they’ll accept proof that you’re Domiciled in the U.S. (meaning you plan on moving back there someday). The second road-block I ran into, was the residency requirement. If a Permanent Resident plans on becoming a U.S. citizen, you have to reside in the U.S. for 18 months within the 3 year residency requirement to be eligible for Naturalization or U.S. citizenship. The third road-block is, that once you have a Greencard, the USCIS expects you to never be outside of the U.S. for more than a year. If you are outside the U.S. for more than a year, they can take away your Greencard and claim you have abandoned the U.S. There are certain exceptions and waivers for residency for spouses of U.S. citizens but, most of it requires the U.S. citizen to be in some sort of military service. I am seeing if there are any other exceptions. Too bad it’s not like Canada…. A Canadian Permanent Resident spending time with a Canadian citizen, even outside of Canada, is still considered residency time!

  31. Xavier says:

    Hi, I am currently on a J1 student visa status, but I came here in the US as a legal seasonal worker back in 2011 then changed my visa status recently. Is there any way I could apply for a green card if my partner and i get married? How does that work in my situation?

  32. Eduardo says:

    HI Doron!

    I am exactly pursuing for the same answer. Hope someone can tell us!

    Thank you so much to all of you guys to be supporting the rights of everyone and thanks to the people who see similarities instead of differences, equality instead of disparity, love instead of hate.

    And special thanks to Mr. Barack Obama who probably did not sign the Court Resolution or even talk to anyone there but at least he spoke clear and set up a determination. This is what made us do: determination.

    Thanks and all

  33. Bryan says:

    Thanks for all your hard work on this issue. It’s meant a lot to have an organization advocating on our behalf, and explaining the intricacies along the way. Your efforts are enormously appreciated!

  34. This is really great news. Thank you¡¡

  35. Vijay says:

    What is USCIS going to do with 1-130 applications already file by same sex couples?

  36. Andre Luiz Lopes says:

    Are bi-national couples able to file for adjustment of status at this moment or we should wait a little longer? Also, how can we get a list of immigration lawyers from you? Thanks for answering these questions. Sincerely,

    Andre.

  37. Jorge says:

    I’ve been in the U.S. for 16 years now on the same relationship with a U.S. citizen. I came here with a tourist visa but I never left. I lost my passport and my Border Crossing and Identification Card but I remember the day, year and airport when I entered the U.S. I never went back home. Will that help to apply for a waiver and change my status within the U.S.? Also my employer has been working with a lawyer on my 245-i application which was filed before April 30th 2001 and re-opened the case after not hearing from them for awhile and it was submitted to the Department or Labor recently. Thank you

  38. Alan says:

    It’s unbelievable, but it comes true finally. I am from Taiwan. I came to Florida to study for my Master’s degree and met my partner Bob in 2010. We were friends in the beginning and then we realized that we had been inseparable to each other. Unfortunately, I did not have good luck to find job after graduation because my major was political science. I had to leave the United States before my visa was expired. I told my partner Bob that he needed to find someone who could stay legally in the US and he refused to do so, and I did not want to give him up, either. So we chatted on Skype every day.

    This year in April I flew to his town to apply for a medical program in hope of having more luck to get working visa to stay with him legally. I got admission to the program and I will fly there in August. Now I learn about the news and I truly thank you – wonderful people – for what you have done: devotion to promoting equality to gay men and lesbians. Thank you, thank you, and thank you.

  39. Yonnie Lopez says:

    I wish domestic partners would get same right. In my case I really don’t want to do marriage but feel my partner deserves green card status.

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  42. The New York Times is reporting that the first green card was issued to a Bulgarian spouse of a U.S. citizen.

    http://www.nytimes.com/2013/07/01/us/gay-married-man-in-florida-is-approved-for-green-card.html?_r=1&

  43. Karl Smith says:

    I have had a GC for two and a half years, My same-sex partner of 17 years is now a naturalized US citizen. If we marry, could I apply to be a citizen after having my GC for three years instead of waiting five years? In other words, will the three year rule for those married to US citizens now apply to gay couples?

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  45. Weiwei says:

    I have filed the petition yesterday…YAY

  46. Pingback: Supreme Court’s DOMA Ruling Opens Door to Immigration Benefits for Same-Sex Spouses | EB-5 Investor Greencard

  47. Mark says:

    I have not seen this particular information anywhere else online but at this website – is this true and/or something new?

    It says right above:

    I am undocumented, my partner is American. Can we apply?

    It depends. Under U.S. immigration law, the general rule is that a person who is in the U.S. without lawful status cannot change from within the U.S. from being here unlawfully to being here lawfully. One significant exception to this rule is that the spouse of a U.S. citizen can apply for a green card from within the U.S. (to “adjust status”) as long as he or she entered the U.S. through a valid port of entry, in other words, following inspection by a U.S. official. – See more at: http://immigrationequality.org/2013/06/the-end-of-doma-what-your-family-needs-to-know/#sthash.ooMiYQW6.dpuf

    • Immigration Equality says:

      Hi Mark, All the FAQs that we have posted are true to the best of our knowledge as of today. As information changes we keep our website up to date. Thanks!

  48. Mark says:

    I came to the States on a visa to be able to start a life with my partner. I left everything behind including my family. My partner decided to dump me after all I had to do to come here to live with him. Even though we are not a couple anymore, I already started my life in this country and can’t go back. Is there any chance for me to apply for permanent residence since it was not my decision to break up and I dont have anything in my home country?

  49. And, this also means many more options for LGBTQ survivors of partner abuse. Immigration provisions under the Violence Against Women Act, like the VAWA Self-Petition, etc. that once excluded LGBTQ survivors can now be accessed. 25-33% of LGBTQ folks experience partner abuse in our lifetimes. Let’s spread the word that these protections are available to our communities too.

  50. Alberto says:

    Thanks so much for your FAQs- I found them really helpful. I am living in South American with my partner who has been denied a tourist visa twice to the US and am wondering which countries that have marriage equality are the ‘best’ to visit to marry in terms of entry (without visa) and process. He is Ecuadorian. We are thinking of trying in Argentina, Spain, Uruguay or Spain. Any feedback is appreciated.

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  55. Blue says:

    Ok, so what is Immigrstion Equality doing about pressing the State Department to issue new changes to the FAM? Overseas spouses and families, as well as fiancees, are placed in limbo until such time…

  56. Jon says:

    It’s too late for us–my husband had to leave the USA one year ago to come live with me in Canada. Then he was diagnosed with terminal cancer. At least future couples won’t have to go through that.

  57. Bo Phelps says:

    I am an american citizen and my partner is from Mexico. Our Attorney said only a person born in the U.S. can sponsor a spouse for a green card or citizenship, at this time. But, the laws may change at some point in the future.

  58. Roy says:

    I want to thanks to my friend people who support federal same sex marriage , we both are deaf and my love who lives in Moscow Russia we did partnership for 11years and never give up and tried to get come to USA was turn down 9 times for 7 years,finally he went refugee to Canada last summer and I went to see my lawyer and open case and applied for fiancé form for him get the visa come to USA within 5 months. Oh ,we are really very excited and cried and can’t wait for my partner comes USA soon then we will be married at Washington DC. I wish I can to help you the donation but this time is difficult because I already spend money a lot. But when we get married and settle everything we will help immigration equality donation …… Many thanks for everything …….

  59. Nile says:

    Thank you Immigration Equality for the great work that you are doing. The lawyer you referred to us is absolutely amazing and was very helpful. We are a same-sex binational couple and today I got my greencard approved.

  60. Lewis Lehman says:

    My partner and I have been together for 21 years. He is from France. He has entered the US on a tourist visa for 21 years and only allowed to stay for 3 months. This has been very stressful. After the Supreme Court decision, we got married in september and today received our green card. What excitement!!! Can’t believe it!!! Many thanks to Immigration Equality for its help in the fight for equality!!

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