Marriage Based Green Card
Same Sex Marriage and Transsexual Marriage
Same sex marriage and transsexual marriage: In June 2013, the US Supreme Court struck down Section 3 of the Defense of Marriage Act, which defined marriage as between a man and a woman. Due to the Windsor decision, same sex married couples now enjoy equal benefits under the immigration laws. A US citizen can petition for his/her same sex spouse to become a permanent resident. The key issue is whether the couple was legally married in a state or country that recognizes same sex marriage.
Prior to the Windsor decision, federal immigration law followed the rule that marriage could only involve one man and one woman regardless of whether the marriage was recognized under state law or the law of the country in which it occurred. Now, things are different. Same sex couples can pursue consular processing or adjustment of status depending on whether the foreign born spouse is in the United States or not.
Additionally, K-1 fiance visas are possible for same-sex couples. Obtaining a green card through the Violence Against Women Act is possible as well if the foreign born spouse has been victimized by domestic violence or extreme cruelty. If a foreign born spouse entered the US illegally, she can pursue an extreme hardship waiver or I-601A provisional unlawful presence waiver based on hardship experienced by the same sex US citizen spouse.
While same sex marriage based cases will be treated by USCIS the same way that heterosexual marriage cases are treated, same sex cases present novel challenges. Some same sex couples might not be completely “out” to their family members. In proving good faith marriage, we often ask for statements from relatives, neighbors, or colleagues attesting to the bona fides of the marriage, but many same sex couples might be reluctant to present themselves as a couple to those they know. It is important to educate the USCIS officers on these differences.
Same sex married couples will have the same requirements as all other marriage based green card cases. The couple will be interviewed during the adjustment of status process. Field examinations and investigations are possible as well.
Transsexual marriages are acknowledged under the Pre-Windsor rule as long as the transsexual spouse had already undergone sex reassignment surgery. The transsexual spouse must have taken whatever legal steps existed and were required to have the legal change of sex recognized for purposes of marriage under the law of the place of marriage. Under the Pre-Windsor rule, fiancé visas, I-360 domestic violence cases and I-130 cases were recognized. Some states would not recognize marriages involving a transsexual spouse including among others Tennessee, Texas and Florida. In light of Windsor, the rules pertaining to transsexual marriage (whether pre-operation or post-operation) would seem obsolete.
Nelson & Nuñez, PC is proud that we have helped many same sex couples navigate the marriage-based visa petition process. If you are part of the LGBT community and are considering a marriage-based immigration case, contact Nelson & Nuñez, PC to schedule a consultation.
See also: Concurrent Filing of Visa Petition and I-485 Adjustment Application
Thank you so much for helping our daughter-in-law get her green card. It means so much to all of us. We really appreciate your help.
FAMILY BASED SERVICES
N-400 Naturalization Application
I-130 Visa Petition Process
I-485 Adjustment of Status
INA 245(i) Adjustment of Status
Same Sex Marriage
Visa Interviews at Consulate
Extreme Hardship Waiver
I-601A Provisional Unlawful Presence Waiver
I-751 Removal of Conditions on Green Card
U Visa - Victim of a Crime
T Visa - Human Trafficking Victim
Deferred Action for Childhood Arrivals
I-730 Form: Petition for Relative Living Abroad
Reinstating Visa Petition Due to Deceased Petitioner
Visa Delays, Denials & Appeals