While in the past, we have, at times, counseled couples against marriage, now that DOMA has been declared unconstitutional, it makes sense for many couples to marry in order to become eligible to file for permanent immigration benefits through relationship-based petitions.
Below we discuss the various options for applying for spousal immigration benefits. 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.
Now that DOMA has been found unconstitutional, can I marry my partner and sponsor her for a green card?
In many cases, yes. However, immigration law is very complicated and you should carefully review these FAQs and speak with a qualified attorney before filing anything. Options for families will vary from case to case, based upon a number of factors, including: whether you and your partner are together or apart; whether you are living together in the United States or abroad; whether you and your partner have married; whether your family can marry; and for families together in the United States whether the non-U.S. citizen partner arrived in the United States after having been inspected by an immigration officer or whether they entered without inspection.
What are the different types of relationship-based immigration petitions?
For families where both partners are in the United States, the U.S. citizen can submit a marriage based spousal petition and the foreign partner can apply for a green card through a procedure known as “adjustment of status.” So long as the foreign partner did not enter the U.S. without inspection (EWI) (i.e. crossing the border), this option should be available regardless of whether or not the foreign spouse is in lawful status or has fallen out of lawful status.
For families who are married and the foreign spouse is located outside the United States, the U.S. partner can submit a spousal petition and the foreign spouse can apply for an immigrant visa through the U.S. consulate, in a procedure known as “consular processing.” For families who are not already married, the U.S. partner can sponsor their spouse to come to the U.S. on a fiancé/e visa, which will allow the two to marry in the U.S. and subsequently file a marriage based application.
Consular processing is also the option that families have to pursue if the foreign spouse entered the U.S. without inspection. However, when the foreign national spouse leaves the U.S. to apply, they may be prohibited from returning because of the three-year/ten-year bar on returning to the U.S. following the accrual of unlawful presence here. As a result, some families may be need to file for a provisional waiver of this bar from within the U.S. and wait here for the waiver to be approved before the foreign partner leaves the U.S. to consular process.
We want to get married and submit a spousal petition, but we don’t live in a marriage equality state. What should we do?
Currently, Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York Vermont, Washington, and the District of Columbia provide full marriage equality for same-sex couples. And soon, Delaware, Minnesota and Rhode Island will have full marriage rights as well. However, even if you don’t live in one of these states, it should still be possible for you and your partner to file for immigration benefits so long as you have married in a state or country that has marriage equality. U.S. Citizenship and Immigration Services focuses on the place of celebration of the marriage, not the place where the couple lives. As long as the marriage was validly entered into under the laws of the state or country of celebration, it should not matter where in the U.S. you reside.
My partner is here on a visa that allows her to have the intention to stay in the U.S. (for example, an H1B or L1 visa). Can I marry my partner and sponsor him/her for a green card?
Yes, as long as a couple is lawfully married, and meet the other general immigration marriage requirements they can apply to adjust status to lawful permanent resident and process their paperwork from within the United States.
I am in the United States on a non-immigrant visa (for example a tourist or student visa) that required me to demonstrate that I did not have immigrant intent. Is it a problem for me to marry my partner and have him/her file a marriage-based green card application?
Maybe. As with many areas of immigration law, this is an area that will involve a fact-intensive inquiry by the United States Citizenship and Immigration Services (“USCIS.”). Many nonimmigrant visas are subject to Section 214(b) of the Immigration and Nationality Act (INA), which creates a legal presumption that the foreign national is an “intending immigrant”, that is that they intend to remain in the U.S. permanently. To overcome the presumption of immigrant intent, a foreign national must show that they have such strong ties to their home country (such as family, a good job, real estate, school enrollment) that it is not likely they would want to remain in the U.S. beyond the period of time the U.S. gives them. However, it is considered acceptable to enter the U.S. with the intention to remain here temporarily and then have your intent change as circumstances in your life change. For example, a university student might meet someone after attending school here and decide to marry that person months or years after entering the U.S. on a student visa.
On the other hand, if a person enters the U.S. on a tourist visa, marries, and applies for a green card a short time after entering the U.S., USCIS may conclude that the individual misrepresented their lack of immigrant intent to the immigration official at the airport and this could in some cases make it difficult to have a green card application approved. This is the law for different-sex couples as well, and we expect it will be applied similarly to same-sex couples.
My partner and I are unable to marry in my home country. If I shouldn’t enter the U.S. on a tourist visa and apply for marriage-based adjustment of status, what’s the best way for me to obtain U.S. residency?
You may have several options and should consult with an immigration attorney. One option is for the U.S. citizen partner to file a fiancé/e visa petition for the foreign national partner. American citizens can file a fiancé/e visa petition for a partner overseas with whom they have a committed relationship. The couple must marry within 90 days of the foreign partner’s entry into the United States, and once married, the American spouse can file a marriage-based petition for the foreign spouse.
Another possibility would be for the foreign national partner to come to the U.S. as a tourist, get married here, and then returning to their home country to apply for a green card through consular processing. Families may also be able to marry in a third country that has marriage equality, which would then allow the foreign spouse to consular process. Different consulates have different backlogs in different categories of petitions, so it would be helpful to consult with an immigration attorney to decide which option would be the best fit for your family’s circumstances.
I am undocumented in the U.S.; is it advisable for me to get married to my U.S. citizen partner and apply for a green card?
In many cases, the answer will be yes. While the general rule under U.S. immigration law is that an immigrant cannot change their status from unlawful to lawful from within the United States, one very important exception to that rule is for spouses of U.S. citizens. As long as you entered the U.S. with inspection by a U.S. immigration officer, you can still file for a green card (adjust status) from within the U.S. even if you are currently here without lawful status. The situation is more complicated if you entered the U.S. without inspection, in which case, with very limited exceptions, you’d be required to apply for a green card from outside the country and may need to secure a waiver of an unlawful presence bar.
If you are undocumented in the U.S. and are planning to travel across state lines to get married, please be aware that there are real risks involved in traveling via mass transit. Immigration and Customs Enforcement (ICE) agents and Customs and Border Protection officers are present at airports. ICE agents also regularly board Amtrak trains and Greyhound buses in an effort to uncover immigrants in the U.S. without lawful status. We have heard from numerous undocumented immigrants who have ended up in removal proceedings as a result of encounters with ICE agents while traveling.
I am currently in removal proceedings. Can I still marry my partner and apply for a green card?
Yes, but it may be more complicated. Any time a couple submits a spousal petition, they must provide evidence that the marriage is real and wasn’t entered into solely to obtain an immigration benefit. However, whenever someone who is in removal proceedings marries a U.S. citizen and applies for status, that person must prove that the marriage is real by “clear and convincing evidence.” This is a very demanding level of proof and families in these circumstances will have to submit extensive documentation establishing the genuine nature of their relationship.
A foreign national’s relationship with a U.S. citizen partner may also help the foreign national to benefit from an exercise of “prosecutorial discretion.” The Department of Homeland Security has issued written guidance clarifying that long-term, same-sex partners should be considered family members and that such family ties are a positive factor when exercising discretion and deciding which cases to pursue for removal. There have been a number of cases where Immigration officials have exercised prosecutorial discretion and agreed to close removal proceedings against gay and lesbian spouses of American citizens. There have also been cases where prosecutorial discretion has been granted to committed couples even if the couple is not legally married, so long as they can prove they are in a committed relationship. A grant of prosecutorial discretion does not result in the foreign national securing a lawful status, but being married to an American may help delay or prevent deportation.
I’m a lawful permanent resident and want to marry my foreign partner. Does the above still apply?
While lawful permanent residents (LPRs) can sponsor their foreign spouses for green cards, under current U.S. law, there is an annual cap on the number of immigrant visas available to the spouses of LPRs. This has created a backlog and on average a two-year wait before these spouses can file the second half of the green card application and apply for permanent resident status. This means that the foreign spouses of LPRs will need to qualify for an independent visa status in order to remain in the U.S. while waiting for their chance to apply for lawful permanent residence. Unfortunately, since many nonimmigrant visas require proof of nonimmigrant intent, it can be quite difficult to obtain a nonimmigrant visa or travel on a nonimmigrant visa once a spousal immigrant petition has been submitted. You can find more information on nonimmigrant visa options at the Visa Options That Are Not Based on Marriage page.
Note that while Lawful Permanent Residents can petition for LPR status for their spouses, unlike U.S. citizens, LPRs cannot secure a fiancé/e visa for a foreign national partner abroad. Because of these distinctions, LPRs who are eligible to apply for U.S. citizenship may consider taking that step.
Do any of these DOMA developments have any effect on couples where one spouse is transgender?
Yes, in many marriage-based green card applications where one or both spouses is transgender, a transgender spouse has to submit evidence about their medical transition as well as documents about legal recognition of their gender change. Since DOMA is no longer in effect, it should no longer matter to Immigration whether the spouses were of different sexes or not, and it should no longer be necessary to submit this kind of proof of gender for the purposes of securing recognition of a marriage, so long as the marriage was validly entered into in the state where it was celebrated.
If my partner and I do decide to marry, what are the requirements to do so in marriage equality states and countries?
As of August 2013 more than a dozen U.S. states plus Washington, DC allow full marriage equality. There are also a growing number of foreign countries which have embraced marriage equality. You can find information regarding the requirements for marrying in each of these jurisdictions on the Where Can We Marry page of our website. As long as the marriage is valid where it is performed, it will be valid for immigration purposes.