When Immigration Matters

After DOMA :Sponsoring Same-Sex Couples for Immigration Benefits

Posted by Karen-Lee Pollak on Jul 8, 2013 10:41:00 AM

green card, permanent residencyOn June 25, 2013, the United States Supreme Court struck down Section 3 of The Defense of Marriage Act (“DOMA”) on broad equal protection grounds finding that there is no legitimate reason for the federal government to discriminate against married couples based on their sexual orientation.  This decision may change the way the entire world thinks about the institution of marriage. 

Until now, U.S. Immigration law did not allow U.S. citizens, permanent residents or non-immigrant visa holders to obtain American immigrant benefits for their same-sex spouses.  Bi-national gay couples now have the same immigrant and non-immigrant visa rights as heterosexual married couples. 

So How Do You Go about Sponsoring your Same-Sex Spouse?

The immigration procedures for sponsoring a spouse is the same as for heterosexual couples and  involves as an initial step filing a Form I130 Petition for Alien Relative with United States Citizenship and Immigration Services (“USCIS”).  At this stage, one would provide proof of the marriage and submit a valid marriage certificate, proof of US citizenship, the passport and birth certificate of the foreign spouse and other pertinent information.  It is taking approximately 5-6 months for this stage of the application process to be approved.  The procedure to obtain the actual green card or second stage of the application will depend on where the spouse is located. 

What if My Spouse is Already Living in the United States? 

If your spouse is already in the United States, an I485 adjustment of status application may be concurrently filed with the I130 application described above together with several other forms including but not limited to an affidavit of support evidencing you or a joint sponsor can support your spouse, an application for work authorization and a travel permit to allow your spouse permission to travel outside the United States while the application is pending if your spouse lawfully entered the United States.  The Immigrant spouse also submits the results of a medical examination from a USCIS approved doctor.  Within a month of filing, your spouse will receive a fingerprint appointment notice to have their fingerprints taken.  Within approximately 3 months, they will receive a work authorization card and travel permit and can then apply for a social security number.   You and your spouse will also be called for an interview at your local USCIS office where you will have to prove the marriage was in good faith. This can be done by evidencing your marriage certificate, joint bank accounts, photographs, proof of travel together, joint credit cards, joint insurance, affidavits from people who know you and any other evidence you have.  If your spouse’s permanent residency application is approved, they will receive a Conditional Green Card which is valid for two years.   The entire process is currently taking approximately 6-8 months. 

What if My Spouse is Living Outside the United States? 

A foreign spouse who is the beneficiary of an approved I130 immigrant petition referenced above, and who is living outside the United States may apply at a U.S. Consulate abroad for an immigrant visa in order to come live and work in the United States as a permanent resident. This pathway is referred to as “consular processing’.  A visa is immediately available for spouses of U.S. Citizens.  Currently, spouses of permanent residents have to wait for a visa to become available.   

Upon approval, USCIS will then send the approved I130 Petition to the National Visa Center (“NVC”) in the United States, which is responsible for the collection of visa application fees and supporting documents and will notify the petitioner and beneficiary when the visa petition is received.  They will also notify the petitioner and beneficiary of when they must submit immigrant visa processing fees, affidavit of support and other forms for processing of the immigrant visa together with supporting documents. 

NVC will then forward the pertinent files to the appropriate U.S. Consulate.  Once the Consulate has reviewed all documents they will schedule the immigrant beneficiary for a medical exam with an immigration approved doctor.  The consular office will also schedule the applicant for an interview. Depending on the Consulate, this process can take up to a year.  The consular office will complete processing of the applicant’s case and decide if the beneficiary is eligible for an immigrant visa. If approved for an immigrant visa, the consular officer will give the immigrant beneficiary a packet of information.  This packet is known as a “Visa Packet.”  You should not open this packet. Upon arrival in the United States, the immigrant beneficiary will give the Visa Packet to the Customs and Border Protection officer at the port of entry. You will be inspected by a Customs and Border Protection officer and if found admissible, will be admitted as a permanent resident of the United States, which gives you the authority to live and work in the United States permanently.   You should be mailed your green card within 30 days of your arrival in the United States.  You are typically given 6 months from the date of your interview to enter the United States.

What if I am not ready to uproot and permanently move to the United States.


U.S. immigration law assumes that a person admitted to the United States as an immigrant will live in the United States permanently. Ideally, one should not be outside the United States for more than 179 days at time.  However, remaining outside the U.S. for more than 12 months at a time may result in the loss of your legal permanent resident status and your green card may be taken away.  For many of my clients, who have employment and family obligations outside the United States, I advise them, at a minimum, to come to the United States at least every 364 days, file U.S. tax returns annually and maintain some ties to the United States in order to maintain their permanent residency status.  If coming to the United States at least once every 364 days is not feasible, the foreign spouse may apply for a reentry permit which allows them to be absent from the United States for two years at a time.  In our experience, this should be used sparingly and cannot be issued more than three times. 

 How do I Lift the Conditions on My Permanent Residency

 As previously states, spouses are initially provided with conditional permanent residency valid for two years.  After 1 year and 9 months of conditional permanent residency, your foreign spouse can apply to lift the conditions on permanent residency.  If you are still married, you will file a joint application.  If divorced, the foreign spouse will provide your divorce decree and file on your own.  In both instances you will provide evidence that the marriage was in good faith.  If Immigration is satisfied, you will be mailed your permanent Green card. 

 What about U.S. Citizenship

 After you have maintained permanent residency for 3 years based on marriage, you can apply for U.S. citizenship.  You would have to have permanently lived in the United States for at least 548 days in the 3 years prior to filing your citizenship application.  These days do not need to be in one block of time but as a whole should add up to at least 548 days.


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