Can Same-Sex Spouses Apply for a Green Card?

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Can Same-Sex Spouses Apply for a Green Card?

In July 2013, U.S. Citizenship and Immigration Services (USCIS) began reviewing the immigration applications of same-sex spouses. This change in policy followed the U.S. Supreme Court’s repeal of the Defense of Marriage Act (DOMA).

What Is DOMA?

The Defense of Marriage Act (DOMA) defined marriage as between a man and a woman for federal purposes. However, the U.S. Supreme Court declared this provision unconstitutional in 2013. As a result, same-sex marriages are now entitled to receive government benefits, including immigration benefits.

Can Same-Sex Spouses Obtain Green Cards Now?

The USCIS will now accept applications for family-based immigrant visas from foreign same-sex spouses. Same-sex spouses need only show that they were validly married in a state or country that recognizes same-sex marriage. Overall, all benefits afforded to opposite-sex spouses under immigration laws will also apply to same-sex spouses.

If your petition was denied after February 23, 2011 because of DOMA, the USCIS will automatically reconsider your application. If you were denied prior to that date because of DOMA, you must notify the USCIS to request a reconsideration.

Can My Fiancé Also Apply?

Same-sex fiancés can apply for a K-1 visa just as same-sex couples can. See the article on fiancé visas for additional information.

What If We Live in a State That Does Not Recognize Our Marriage?

This will not affect eligibility for a green card. The USCIS evaluates whether the marriage is valid in the place of celebration.

Can a U.S. Citizen or Permanent Resident File for Our Children?

You can also file an application for the children you and your spouse have together. It may be easiest to identify them as step-children if you are not the biological parent. You must have married before any children reached 18 years of age. Additionally, you must meet the following qualifications:

Do I Need an Attorney to Apply for a Green Card Based on a Same-Sex Marriage?

Since immigration petitions and the green card application process can be complicated, it is best to consult an immigration attorney. Consulting an attorney will help ensure that you, your spouse, and your children are afforded all appropriate benefits.

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Last Modified: 06-20-2014 11:42 AM PDT

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