Same Sex Marriage Green Cards are Allowed in America
Yes! Same sex marriage green card applications can now be filed by USA citizens and USA lawful permanent residents for their same sex spouses. If you have questions, you can call immigration attorney Danielle Nelisse at (619) 235-8811 and ask for a free legal consultation over the phone.
Do we have to live in a “marriage equality” American state to apply for a green card?
No. If your wedding took place in a place where same sex marriage is valid (in a same sex marriage state or country) that marriage makes you eligible to apply for an American green card based on your marriage to a same sex spouse. It doesn’t matter to the immigration officer where you now reside.
If an American state legally recognizes a same-sex marriage, then the same sex married couple may enjoy the same federal benefits as different sex married couples, which includes marriage green cards.
Click here for country-by-country information about marriage equality in different countries: http://immigrationequality.org/issues/couples-and-families/where-can-we-marry/
We got married in Canada. Do marriages that took place outside the U.S. count for same sex marriage green cards?
Yes. So long as the wedding took place where the marriage was considered a legal marriage, it is sufficient for immigration purposes to get a same sex marriage green card (permanent residence card) even if you reside in an American state where same sex marriage is not legal.
What if my spouse is outside the USA?
The process to get a marriage green card when the spouse of the U.S. Citizen is outside the USA is called “Consular Processing” which takes 12 – 15 months.
In this case, the marriage green card interview is conducted at a U.S. Embassy or U.S. Consulate.
What if my spouse is legally inside the USA?
The process to get a marriage green card when the spouse of the U.S. Citizen is inside the USA is called “Adjustment of Status,” which takes 4-5 months. In this case, the marriage green card interview is conducted at a local USCIS office.
What if my spouse is in the USA, but is overstayed their visa or is undocumented?
Sometimes foreign nationals are allowed to get their marriage green card if they have proof they entered the USA legally, but they overstayed their B2 or F1 or H1b (or other) visa. It depends on various factors.
Other foreign nationals who entered the USA illegally still are eligible to get their marriage green card. It also depends on various factors.
Eduardo and Alberto, 2015
Is a K-1 fiance visa allowed for same sex couples?
Yes. Sometimes the foreign national lives in a country that does not allow marriage equality. In that case, the USA citizen may be able to request a fiance visa for their fiance and after they arrive in the USA, they would need to get married within 90 days in the USA in a same sex marriage equality state and then file for a marriage green card.
What if we both live abroad? What if we are not ready to come back to the USA yet?
If you choose “consular processing” the marriage green card would be processed while you and your spouse is abroad. Once the processing starts, the U.S. citizen spouse may visit or move to the U.S., but the foreign national spouse would need to remain abroad until the processing is completed – they are not supposed to use their tourist visa while their marriage green card is pending.
After the same sex marriage green card is granted by the U.S. Embassy/Consulate and the foreign national spouse moves to the U.S., he/she must live in the U.S. permanently in order to keep the marriage green card. It does not make sense (and it is expensive) to get the green card only to leave immediately and give it up so they need to be ready to stay in the U.S.
It takes 3 years after getting the marriage green card to get USA citizenship. After a foreign national becomes a USA citizen, it does not matter where they live – they keep their USA citizenship even if they live in a different country.
What if we have children?
Let’s say your foreign national spouse has a biological child – in that case the child should also get a green card. There are more complications when the child is adopted or a stepchild of the foreign national spouse.
Does a civil union or domestic partnership count?
The answer to this is not 100% clear yet so for the moment the answer is no. If it is possible to get officially married, you can feel more secure that your same sex marriage certificate will be recognized for same sex marriage green card purposes.
Is the process for a green card for a same sex married couple the same?
Yes and no. We believe the filing fee and paperwork will be the same, and the instructions and forms are on www.uscis.gov.
However, there may be differences in terms of proving a “bona fide marriage” as well as differences for the same sex marriage green card interview.
If you’d like to discuss your case, you can call (619) 235-8811 and ask to speak with Danielle Nelisse, an immigration attorney with 16 years of immigration marriage green card experience. If she is not at her desk, please leave a voicemail message and she will call you back.
She does not charge a fee to take your call and discuss whether your case would qualify. If you qualify, she can provide you with a quote for how much it would cost to represent you no matter where you reside.
Danielle Nelisse can be reached at (619) 235-8811 in San Diego, California if you want to discuss legal representation for your immigration case – there is no charge for a brief telephone call or email questions.
When you call the office, just ask to speak to Danielle Nelisse.
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Other Immigration Questions Concerning Same Sex Married Couples:
What are the issues if my gay spouse entered the USA as a B-2 Tourist ?
Exactly what happens at a marriage green card interview?
Tips on how to help your helping your partner adjust to America during the Adjustment of Status process.
What if my spouse entered the USA legally, but overstayed their visa?
What if my spouse is HIV positive?
Is “coming out” important to the Immigration Officer who conducts the marriage green card interview?