Since the historic vote of the Supreme Court allowing same gender couples to marry and also repealing DOMA (Defense of Marriage ACT), the Law now grants foreign spouses of US Citizens the same rights to file for permanent residence as the heterosexual foreign spouses.
We have been receiving a phenomenal amount of emails and phone calls about this issue and here are the answers to some frequently asked questions:
What is the process to file a green card for my foreign same-sex spouse/husband/wife?
It is pretty much the same as the heterosexual one.
How do we get married?
There are many gay marriage, non-denominational, universalist Churches and ministers in the Bay Area that can arrange a very formal wedding with many guests, or a simple ceremony with only a few close friends and witnesses in a small and intimate place. The marriage license process is pretty much the same in any scenario: You must first obtain a marriage license from the County Clerk office where you live. In this case, you both need to show up and request the marriage license. You will need an ID and be over 18 years of age. There are two types of marriage licenses: Public and Confidential. The public one goes to County and State Public records and pretty much anyone can have access to the information.
If any of the parties prefer not to have their marriage record to be public (do to family issues or employer policies) you can request a confidential marriage (you don’t need witnesses for confidential marriages). This mariage license is just as valid as the public one, but with one difference: You and your spouse must be living as a couple already for some time and only you and/or your spouse can request a certified copy of the marriage record from the County, which by the way, does not show up in public records. The California issued marriage license allows you to marry anywhere in California (Sorry, can’t be in Las Vegas with an Elvis witness) and the minister or officiant will sign the license and send it back to the County where it was issued to get it recorded. Congratulations, you are now officially married!
Will my foreign same-sex spouse get the Green card even if she/he’s been here illegally?
There are two possible answers: If your spouse was admitted to the United States Legally (This means, entered with a valid passport and/or US issued visa or Visa waiver) and even if he/she overstayed their time, most likely will qualify for the adjustment of status without consequences.
If your spouse entered without inspection (illegally) the process is different, and it might require to file a waiver of inadmissibility and apply for the permanent residence at a US Embassy or consulate abroad. If this is the case, please consult with an immigration attorney before starting any paperwork and possibly put your spouse at risk of removal.
Will my foreign same-sex spouse will be a US Citizen right away?
No. The process takes time. If the marriage took place recently, the initial filing is for a conditional “green card” which is valid for only 2 years. It is a “conditional green card”. Before the two year expiration date, a secondary interview with the USCIS is necessary to prove that the couple is still married and are living together. If the US petitioner fails to show up to the interview, the green card is cancelled and the foreign spouse could be removed from the US.
If things don’t work out well during the initial 2 years and the marriage is dissolved, the foreign spouse can still get the permanent green card if can prove the marriage was “bona fide”.
The US Citizenship is only granted after being married for 3 years and have obtained the permanent resident card.
Please consult with an immigration attorney as soon as possible before filing or submitting any paperwork.
In San Francisco, please call (415) 300-0174 and schedule a consultation.