Marriage is said to be the ultimate testament of your love for another person. If your spouse happens to live in another country, the distance can cause added strain to the relationship. Fortunately, with the landmark Supreme Court decision in 2013, United States v. Windsor, and then later another ruling in Obergefell v. Hodges, not only are gay marriages legally recognized but they are viewed the same as heterosexual marriages under U.S. immigration law so gay and lesbian couples can obtain marriage green cards for their partners. In this guide we’ll explore some common hurdles same-sex couples face when trying to obtain a gay marriage green card as well as tips to ensure the highest chance of an approval.
Same-Sex Marriage Green Card Process
Since gay marriages are viewed equally as heterosexual marriages under U.S. immigration law, the process is largely the same. There are however, sometimes added hurdles when having to prove that the relationship is bonafide. Other topics we will cover include whether civil unions qualify under the requirements, how same-sex marriage laws in countries affect the process, frequently asked questions, and more.
Distinguishing Between Marriages and Civil Unions/Domestic Partnerships
For a long time, civil unions were the only option gay and lesbian couples had when wanting to legally legitimize their relationship and reap some of the civil perks that come with it. Under U.S. immigration policy, however, civil unions and domestic partnerships do not meet the requirements to obtain a gay marriage green card — you must be legally married. If you are in a civil union, you should consider getting married (legal in all 50 states since 2015). You also do not need to worry about any local or state laws that may deter same-sex relationships because federal law is what governs immigration policy and same-sex marriage is legal in the United States.
Now, this is unfortunately not the case if your union was formed in a country that does not recognize same-sex marriage. There are currently 29 countries that legally permit gay marriage:
- Costa Rica
- The Netherlands
- New Zealand
- South Africa
- United Kingdom
- United States
On the other end of the spectrum there are a number of countries that have laws criminalizing same-sex relationships. A number of countries in Asia as well as the Middle East do not recognize gay marriage. Some of those include Afghanistan, Antigua & Barbuda, Algeria among others. If you find yourself in a situation where you want to petition for your partner but gay marriage is not legal in their home country, you should consider applying for a K1 visa otherwise known as a fiancé visa.
Demonstrating the Legitimacy of Your Same-Sex Relationship
One of the most important factors that will be evaluated by USCIS officials when applying for a gay marriage green card is the legitimacy of your relationship. Photos of you and your partner are great to include as part of your I-130 petition, in addition to any letters or other correspondence over the course of the relationship. If you have a relationship with your spouse’s in-laws, that can also be beneficial to your case because USCIS officials or consular officers may ask questions pertaining to them during the green card interview. If you do not have a positive relationship with your spouse’s in-laws due to homophobia, be honest with your answers and just explain that to the officer. At the bare minimum, however, you should know some basic information about them like their names to show good faith in trying to establish a relationship. When pursuing a same sex marriage green card, you may be advised to also provide documents demonstrating that you and your spouse live together, if that is the case. Things like a rental or lease agreement, joint electric or water bills, joint bank accounts, memberships, subscriptions, and joint credit cards can be useful as well as any other documented form of benefits that your spouse receives, for example from your job or from a life insurance policy. The important thing for documents to show is that both names are on them along with the same address. If none of these documents are pertinent because you fear living with your partner due to discrimination or anti-LGBTQ+ sentiments in your community you should consult a qualified immigration lawyer who can assist you in finding relevant evidence to bolster your case.
Are K1 fiancé visas permitted for same-sex couples?
You can apply for a K1 visa for your same-sex partner if the petitioning spouse is a U.S. citizen. On the K1 Fiancé visa, once your partner arrives to the U.S. you have 90 days to get married otherwise they need to return to their home country.
Documents that Serve As Proof of Marriage
The following documents can serve as proof of you relationship and to satisfy some of the USCIS requirements:
- Lease or mortgage documents with both names
- Property deeds with both names
- Joint bank account statements
- Driver’s license with the same home address
- Utility bills with both names
- Life insurance polices with each person as beneficiary
Gay Marriage Green Card Interview
Gay marriage green card interviews are structured that same as heterosexual green card interviews. The consular officer’s job is twofold – they must determine if the marriage is bonafide and if the foreign national should be issued a green card. During the interview you will be asked a number of questions about how you met, how you spend your time together, relations with in-laws and other relatives, etc.
Frequently Asked Questions
What happens if I was in a heterosexual relationship in my past?
First of all you will need to disclose any prior marriages you have had on the I-130 petition, as well as certified copies of divorce or death certificates. It is critical not to try and conceal a prior marriage or lie about it. If you have had a heterosexual relationship in your past, it is not an automatic deal-breaker for obtaining a gay marriage green card with your new spouse. Be prepared to answer questions about your past relationship during the interview. Your lawyer can advise you how best to address questions prior to meeting with immigration officials. Things get a little bit more tricky if you filed for a marriage green card in the past for this heterosexual relationship. USCIS may consider fraud was at play and even more so if you became a U.S. citizen from a past heterosexual relationship and are now applying for a same sex marriage green card. If you find yourself in this situation, disclose all details to your attorney so that they can best guide you throughout the process.
Are there special requirements to obtain a same sex marriage green card?
No, same sex marriage green card applicants must meet the same requirements as heterosexual marriage green card applicants.
Can I apply for a same sex marriage green card if I have a civil union?
Unfortunately, a civil union does not suffice to apply for a gay marriage green card. You must be legally married to file. If you are in a civil union, you should consider getting married or if your partner lives in another country you can apply for a K1 fiancé visa as well.
What if the immigration officer during my interview is homophobic?
Since a USCIS officer can wield a lot of power over whether or not you are approved for your gay marriage green card you may be worried about bias or discrimination based on your sexual orientation. You can rest assured that these officers are required to undergo serious training surrounding LGBTQ concerns and their job is to carry out U.S. immigration laws so they are not allowed to issue decisions based on their personal beliefs. They generally are understanding of challenges gay couples face with relative and family members.
What if I got married in a country that does not recognize gay marriage?
In order to petition for your spouse on a marriage green card, you must have been married in a country where same-sex marriage is legal. Let’s say for instance you were married in Algeria where it is not recognized, and you partner does not live in the United States, your best course of action would be to file for a fiancé visa and then get married in the United States (within 90 days) where it is legal in all fifty states. To file the K1 visa you first need to file Form I-129F, Petition for Alien Fiancé(e). After you receive an approval for Form I-129F, about 30 days later the foreign partner should receive a letter from the U.S. embassy in their home country with details about the time and date of their visa interview. The sponsored partner must also file DS-160, Online Nonimmigrant Visa Application and submit the required documents. The final step is the visa interview which the foreign partner will do at the closest U.S. embassy or consulate near them. Additional evidence may be requested for USCIS to make a final decision on the case.
The State Department just recently issued a policy change that now permits children born outside of the United States via surrogacy or in vitro to same sex couples to obtain U.S. citizenship as long as they are genetically related to at least one parent. Prior to this change, the child had to be genetically related to the U.S. citizen parent in order to qualify for citizenship.
Can my spouse apply for naturalization after 3 years?
Just like heterosexual couples, green card holders married to a same-sex U.S. citizen partner can apply for naturalization after three years.
What is the filing cost for a marriage green card?
The cost to file an I-130, Petition for Alien Relative, is $535 which can be paid with a money order, personal check or cashier’s check. Additional fees may apply for lawyer costs, etc.
What is the gay marriage green card timeline?
The entire gay marriage green card can take anywhere from 9-38 months or more depending on the USCIS caseload and any Requests For Evidence (RFE) that may come up. The first step is to submit the I-130, Petition for Alien Relative (with supporting documents) to establish the validity of the relationship. Along with Form I-130 submit proof of the marriage certificate and other documents showing you live together (joint bank accounts, utility bills, etc.) From there, the next step is to apply for permanent residency. Should you be living in the United States, you can file an adjustment of status with Form I-485 at the same time as your Form I-130. If you live outside of the U.S. then you can apply for the marriage green card via consular processing. That basically means that you wait in your home country until your I-130 is approved. When USCIS approved it, they send the notice to the National Visa Center who will then send you a notice by mail or email which will have instructions for submitting your National Visa Center filing package. In the package, you should include the government filing fee, Form DS-260, copy of your birth certificate or passport photo page, police clearance certificate and I-864 Affidavit of Support. After all those documents have been submitted, the last step is your green card interview. USCIS will send you the notice for when your green card interview appointment is. The length of time the entire process will largely depend on if you are already living within the United States and whether you are already married or need to apply for the fiance visa first.