Immigration and same-sex marriage

Following the Supreme Court's ruling that struck down Section 3 of the Defense of Marriage Act (DOMA), Secretary of Homeland Security Janet Napolitano ordered on July 1, 2013 that the United States Citizenship and Immigration Services (USCIS) "review visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse."

Fiancé(e) visas: petitioning for a same-sex fiancé(e)

If your same-sex fiancé or fiancé(e) is already legally in the U.S. or you plan to marry outside the U.S., then you don't need a fiancé(e) visa. A gay couple only needs a fiancé(e) visa if they plan to marry in the U.S. and the fiancé(e) is not currently residing in the U.S.

The requirements for a K-1 nonimmigrant visa, Form I-129F (Petition for Alien Fiancé(e)), are as follows:

  • Petitioner must be a U.S. citizen
  • Couple must marry within 90 days (visa expires after 90 days and cannot be extended)
  • Both parties must be free to marry (that is, any prior marriages terminated by annulment, divorce or death)
  • Must have met in person at least once within the last two years (unless meeting would violate long-established customs or represent an extreme hardship)
  • Fiancé(e) is not otherwise inadmissible because of health, criminal record, security threat, past unlawful presence or other reasons

If the fiancé(e)'s has children, and those children are under 21 years of age and unmarried, then they also may be eligible for a nonimmigrant visa.

Green cards: petitioning for a same-sex spouse

A U.S. citizen in a same-sex marriage to a foreign national may file a family-based immigrant visa petition, Form I-130 (Petition for Alien Relative), on behalf of his or her same-sex spouse.

This is true even if the U.S. citizen lives in a state, like Texas, where gay marriages are not valid. In general, the law of the place where the marriage occurred is what is controlling. Thus, if a gay or lesbian couple is married in a U.S. state or territory or foreign country that allows same-sex marriage but subsequently moves to Texas or another state that doesn't recognize same-sex marriage, then they are still considered married for immigration purposes.

If the same-sex spouse is lawfully inside the United States, he or she is eligible for permanent residence (a green card). This is accomplished by the filing Form I-485 (Application to Register Permanent Residence or Adjust Status). This can be done at the same time or after the petitioner (U.S. citizen spouse) files Form I-130 (Petition for Alien Relative).

If the same-sex spouse is outside the U.S., he or she can become a lawful permanent resident (LPR) through consular processing.

Speak to an immigration lawyer

The immigration process is complicated. Working with an experienced immigration attorney is a good way to make sure mistakes and unnecessary delays do not occur. Contact a Texas immigration lawyer today to schedule a consultation.