In 2013, the United States Supreme Court decided United States v. Windsor (570 U.S. 744), which stated that same-sex marriages and heterosexual marriages would be treated the same for immigration purposes. LGBTQIA+ citizens and green card holders can now apply for marriage green cards on behalf of their foreign national spouses, the same as a heterosexual couple. Even with this progress, LGBTQIA+ couples still encounter unique hurdles during immigration proceedings. This blog post will shine a light on some of these concerns, so that readers know what to expect when petitioning for a visa for their same-sex partner. United States immigration law is very complex and changes frequently. For current, up-to-date advice tailored to your specific circumstances, reach out to a New York City immigration attorney as soon as you can.
Concern #1: Proving Your Relationship for Visa Purposes
Marriage-based green card proceedings focus greatly on proving that the applicants have a real and authentic marriage. United States immigration authorities are primarily trying to stop marriage fraud. Marriage fraud occurs when a couple pretends to have an actual relationship, but has only gotten together to obtain a green card for the foreign national individual. In accordance with Windsor, same-sex couples and heterosexual couples must meet the same requirements and submit the same documents to prove the sincerity of their marriage.
However, larger, society-wide discrimination can mean that meeting the same requirements can still pose unique problems for LGBTQIA+ couples. For example, photos of the spouses with their in-laws are often sent in a marriage green card filing package as proof that the relationship is authentic. This kind of proof may also be difficult for heterosexual couples when there is friction between the couple and the in-laws. Unfortunately, societal prejudice against LGBTQIA+ individuals increases the possibility that the in-laws may avoid the couple, in turn making it more difficult to prove the authenticity of the marriage.
And that’s not the only way that prejudice puts same-sex couples at a disadvantage. In trying to protect themselves from this same bias, LGBTQIA+ couples may choose not to be each other’s emergency contacts or not to be listed on the same joint lease, which makes it harder to prove the authenticity of the relationship. Despite the complexities of human attraction, immigration authorities also tend to become suspicious of LGBTQIA+ couples if either partner had previously been in an opposite-gender marriage. An immigration official who thinks they see signs of a prior heterosexual marriage may begin to suspect fraud. While these concerns are not always the reason a green card is denied, they are additional hurdles that need to be dealt with.
Concern #2: Does My Relationship Qualify to Petition My Spouse?
Both same-sex and heterosexual marriages can be grounds for seeking a marriage green card. But only marriage relationships can justify a marriage green card. When we consider that marriage equality only very recently became legal with Obergefell v. Hodges, 576 U.S 644 (2015), we realize that many LGBTQIA+ couples may have formalized their relationship through a civil union instead. Civil unions, sadly, do not have immigration benefits.
If you have further questions or you’d like to obtain a visa for your same-sex partner, simply contact our firm for help today.