Following the July 2013 Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional, President Obama directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be denied as a result of the same-sex nature of your marriage.
If you are in a same-sex marriage and intend to petition for your spouse to live in the United States as a green card holder (permanent resident), you must be either a US citizen or green card holder.
Requirements to bring your same-sex spouse to the United States:
You are a US citizen and your same-sex spouse is lawfully in the United States: File both Form I-130, Petition for Alien Relative, and Form I-485, Application to Register Permanent Residence or to Adjust Status. The recent versions of the form instructions provide additional information (i.e. filing fees and filing addresses). These two forms are required along with a list of other documentation and government forms. It is always advisable that you consult an immigration attorney prior to any submission of forms to the USCIS, as there are other requirements to qualify to file an Adjustment of Status petition.
You are a US citizen and your same-sex spouse is outside the United States:
File Form I-130, Petition for Alien Relative. Following an I-130 approval, it will be forwarded for consular processing. Thereafter the related consulate or embassy will provide notification and processing information. The recent versions of the form instructions provide additional information.
You are a green card holder (permanent resident) and your same-sex spouse is lawfully in the United States: File Form I-130; after a visa number becomes available, you will then have to apply to adjust your spouse’s status to permanent residency using Form I-485. Unless your spouse had an immigrant visa petition or labor certification pending prior to April 30, 2001 your beneficiary spouse must have continuously maintained lawful status in the US in order to be eligible to adjust status. The recent versions of the form instructions provide additional information.
You are a green card holder (permanent resident) and your same-sex spouse is outside the United States: File Form I-130; following an I-130 approval and availability of a visa, it will be forwarded for consular processing. Thereafter the related consulate or embassy will provide notification and processing information. The recent versions of the form instructions provide additional information.
If you or a family member is active in the US military, special conditions may be considered by the United States Citizenship and Immigration Services.
If you are a US citizen, you must verify your status with:
- a copy of your valid US passport;
- a copy of your US birth certificate;
- a copy of a consular report of birth abroad;
- a copy of your naturalization certificate; or
- a copy of your certificate of citizenship
If you are a green card holder (permanent resident), you must verify your status with:
- a copy (back and front) of your green card / Form I-551; or
- a copy of your stamped foreign passport temporarily verifying permanent residence
Conditional Residence and Removing Conditions: If you have been married less than two years when your same-sex spouse is granted permanent resident status, he/she will receive permanent resident status on a conditional basis. To remove the conditions on residence, you and your spouse must Petition to Remove the Conditions of Residence and file Form I-751. An Application to Replace Permanent Resident Card is not used for this purpose. You must apply to remove conditional status within the 90-day period before the expiration date on your spouse’s conditional resident card. If you fail to file during this time, your spouse’s resident status will be terminated and he or she may be subject to removal proceedings.
Feel free to contact the Attorneys at MJ LAW at (408) 293-2026 to schedule an in-person, telephone or virtual consultation. The Attorneys have over 40 combined years of experience in successfully representing clients with US family Immigration matters.
