In this video Kaushik Ranchod from the Ranchod Law Group talks about same sex marriage and immigration (immigration benefits through marriage for the LGBTQ community). Kaushik answers frequently asked questions about the process, explains who is eligible and describes issues regarding immigration and gay marriage.
Same sex marriages have been contentious over the past couple of years and allow explaining the immigration benefits same-sex couples are now eligible for. If you have questions about your specific case please feel free to call us at (916) 613-3553.
same sex marriage and immigration
On June 26, 2015, the U.S. Supreme Court held in a 5–4 decision that the Fourteenth Amendment requires all states to grant same-sex marriages and recognize same-sex marriages granted in other states. For immigration purposes, this means USCIS now recognizes same sex marriages the same as heterosexual marriages. You can now petition your same-sex spouse for immigration benefits.
Frequently Asked Questions about same sex marriage and immigration
- Do I need to be married?
- Are there states that do not allow same sex marriage
- I have a transgendered partner
- Which are the first steps to petitioning for my same sex spouse?
- Can I sponsor my same-sex spouse for a family based immigrant visa?
- Can I file for a fiancee visa if I’m engaged to a foreign national of the same sex?
- Eligibility for immigration benefits
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- Do I need to be married to my same sex partner or is a relationship of long duration or cohabitation (living together) sufficient?
- In order to receive any immigration benefits from your relationship, you two will need to be married. A relationship of a long duration and cohabitation will help you both prove to the immigration service that your relationship is valid and not just for purposes of immigration. In the case of a same-sex marriage and immigration, simply having a relationship of long duration or cohabitation will not be sufficient. You need to marry your partner in order to give that partner any sort of immigration benefits.
- Do I need to be married to my same sex partner or is a relationship of long duration or cohabitation (living together) sufficient?
<liid=”2″>What if I live in a state that does not allow same sex marriage? Do I have to move?
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- Again, based on this supreme court ruling all 50 states must now recognize same sex marriages. So you can get married in your home state, and there is no need to move.
- What if my partner is transgendered? Can my partner still obtain immigration benefits?
- Assuming all other immigration requirements are met, transgendered individuals who are married to individuals with legal status in the United States may still be able to benefit. As with same sex couples, the benefit to be obtained by your transgendered partner will depend on:
- your status (U.S. Citizen, Lawful Permanent Resident, or other);
- your partner’s method of entry to the United States (with a visa or illegally);
- whether your partner has any immigration violations or any criminal issues.
Not all immigration violations or criminal convictions will prohibit your same sex or transgendered partner from receiving immigration benefits, some issues are insignificant and some issues can be resolved through the use of a waiver.
- Assuming all other immigration requirements are met, transgendered individuals who are married to individuals with legal status in the United States may still be able to benefit. As with same sex couples, the benefit to be obtained by your transgendered partner will depend on:
- After getting married, what is the first step to petitioning for my same sex spouse?
- You should contact a qualified same-sex immigration attorney who will determine whether your partner qualifies for lawful permanent residency (i.e. a green card) or some other benefit.
- Aside from the basic documentary requirements (passport style photographs, proof of lawful entry, copy of marriage certificate, etc.) you will likely be required to produce paperwork to help prove that you two are in a legitimate relationship and not just for purposes of immigration. Examples may include:
- proof of joint bank account/s
- bills
- joint lease agreements
- joint property
- photographs of shared life experiences
- affidavits from friends and family
- Some of the forms that will need to be completed include:
- If I am a United States Citizen or Legal Permanent Resident, in a same sex marriage, can I now sponsor my spouse for a family based immigrant visa?
- YES! Just the same as you would for a Marriage Based Green Card (Adjustment Of Status) you can file an I-130 Petition for Alien Relative for an immigrant visa where they complete the process outside the U.S. at United States embassy.
- If I am a United States Citizen who is engaged to be married to a foreign national of the same sex, can I file a fiancee visa?
- Yes! You would file the I-129F, at the appropriate service center. Then from there, the petition would go to the NVC forbackground checks. And afterward it would go to the specific embassy where they would apply for a visa. They would then be allowed to enter, you would need to marry within 90 days then apply for a Marriage Based Green Card.
- Who is eligible for immigration benefits?
- The U.S. Citizen partner may file a petition on behalf of the foreign national partner in the case of an individual who last entered the country legally. In addition to the basic requirements (certificates, photographs, proof of lawful entry, etc.), that petition should be accompanied with documentation to evidence that the couple is in a legitimate relationship and not one designed to circumvent the immigration laws.
- In the case of an individual who last entered the country illegally, the U.S. Citizen partner may file a petition on behalf of the foreign national partner, as in the above scenario, but the foreign national partner will need to be the beneficiary of a hardship waiver or else face a three or ten year bar if the foreign partner leaves the country to try to obtain an immigrant visa abroad.
- In both of the above scenarios the couple will be subjected to an interview with an immigration officer in which the couple must answer questions designed to detect fraudulent relationships. Also remember that in both of the above scenarios, simply living together is not sufficient.
- In cases in which the foreign partner is abroad, the U.S. Citizen partner may file for a fiancé/fiancée visa or, if the couple is married, for an immigrant visa. Both of these cases require documentation to prove the legitimacy of the relationship in addition to the basic required documentation.
- If your partner is abroad, you may also choose to marry in a country where same-sex marriage is legal, like:
- Canada;
- France;
- Great Britain;
- South Africa;
- or Spain among other countries.
- Finally, in cases in which the foreign partner is already in removal proceedings, relief might mean obtaining permission to marry from the immigration judge in bond proceedings, seeking adjustment of status to that of a lawful permanent resident, or, having the U.S. Citizen spouse serve as a qualifying relative for purposes of cancellation of removal or a waiver.
- Ranchod Law has been doing all of the aforementioned for over a decade and we are delighted to apply our expertise and dedication to the benefit of same sex couples. Please contact our office to discuss same sex marriage and immigration.
- Our clients are located all over the U.S. and abroad so if you can’t visit our Sacramento offices you can still contact us at (916) 613-3553.