On June 26, the U.S. Supreme Court declared Section 3 of the Defense of Marriage Act unconstitutional in United States v. Windsor. With this landmark decision, many immigration benefits are now available to lesbian and gay couples, including lawful permanent residence (a green card), fiance visas, and derivative nonimmigrant benefits.
When evaluating the validity of a marriage for immigration purposes, U.S. Citizenship and Immigration Services generally employs a "place of celebration" rule. Under this rule, if a marriage is valid in the state or country where it was celebrated, that marriage is recognized for U.S. immigration purposes. This means that a couple need not live in a marriage equality state to be able to gain immigration benefits for a same-sex noncitizen spouse. In fact, the first green card cases approved by USCIS after the Windsor decision were for same-sex couples married in New York and Iowa but residing in Florida and Colorado, respectively.
All couples who seek to have one spouse immigrate on the basis of their marriage must demonstrate that the marriage is bona fide; that is, that it was not entered into for the sole purpose of evading the immigration laws. Evidence demonstrating a bona fide marriage for same-sex couples could include: proof of filing joint state or federal tax returns, proof of state domestic partnership registration, joint health or dental insurance policies, joint bank or investment accounts, joint rental leases, or real estate co-ownership.
Applying for a green card
Most foreign citizens married to a same-sex U.S. citizen spouse can now apply for a green card. Immigration law is complex and there will still be barriers to some couples, but the systemic discrimination that prevented our families from receiving the same respect under the law as others has ended. There are two primary avenues available for green card processing, Adjustment of Status and Consular Processing.
Adjustment of Status is green card processing within the United States. In most cases, the foreign spouse must have made a lawful entry to the U.S. (that is, was "inspected and admitted, or paroled") and must be presently in the United States. Spouses of U.S. citizens may apply for Adjustment of Status even if they are currently out of status due to having "overstayed" the period of admission that they were initially granted by the U.S. government (so long as they initially entered lawfully), and even if they worked without authorization since arriving in the U.S.
A noncitizen spouse who is not in the United States can apply for lawful permanent residence through Consular Processing. Consular Processing is also the avenue for green card processing for most individuals who entered the United States without inspection (i.e. without being "inspected and admitted, or paroled"). Such individuals are generally not eligible to file for Adjustment of Status from within the United States, regardless of whether they are married to a U.S. citizen or lawful permanent resident. When a person who entered without inspection departs the United States to complete Consular Processing abroad, the departure will usually trigger an unlawful presence bar that can only be waived through approval by USCIS of a discretionary waiver. This waiver requires proof that refusal of admission of the immigrant would result in "extreme hardship" to a U.S. citizen or lawful permanent resident spouse or parent. A new "provisional waiver" process allows some spouses of U.S. citizens to apply for the discretionary waiver before departing the United States, potentially avoiding a very lengthy separation for the couple.
Applying for a fiance visa
If the noncitizen is outside the United States and the couple is not yet married, a U.S. citizen may petition for a K-1 fiance visa for his or her partner. The visa is only available to individuals who are coming to the United States to conclude a valid marriage within 90 days after entering the country. After the marriage takes place, the noncitizen may apply for Adjustment of Status and obtain a green card.
Applying for nonimmigrant derivative benefits
If a foreign citizen holds a U.S. visa (such as an F-1, H-1B, L-1, etc.), his or her spouse may now apply for a derivative visa (such as F-2, H-4, L-2, etc.) to accompany primary visa holder to the United States. However, as with different-sex couples, in many cases the spouse holding the derivative visa will not be allowed to work in the United States.
Issues requiring careful counseling
Applicants for a green card or fiance visa who have issues with prior immigration fraud, marriage fraud, criminal convictions, overstays, receipt of means-tested public benefits (such as welfare), entries without inspection, or prior removals from the United States should consult with an immigration lawyer before filing anything with the U.S. government to be sure that the noncitizen will be eligible for immigration benefits and will not be risking deportation from the United States.
Conclusion
For many years, LGBT people have faced systematic discrimination under federal law, including in the area of immigration law. With the demise of Section 3 of DOMA, same-sex binational couples can now access the full range of marriage-based immigration benefits, fiance visas, and derivative nonimmigrant benefits. Immigration advocates will be working closely with the federal agencies that regulate immigration law in the U.S. to ensure that the new benefits are provided in a flexible manner and with recognition of the history of discrimination that has existed for LGBT couples in U.S. immigration law.
This column is not intended as legal advice for your specific situation. Kelly McCown, co-founder and partner of McCown and Evans LLP, is one of fewer than 200 attorneys approved as a certified specialist in immigration and nationality law by the State Bar of California. McCown is co-chair of the board of directors of the National Center for Lesbian Rights. McCown's firm is offering complimentary consultations to same-sex couples with questions about fiance visas or green cards through marriage. To schedule, call (415) 834-9123 or email [email protected].