Same Sex 'Green Card Marriage' Facts
By Jade Yeban, J.D. | Legally reviewed by Nicole Prebeck, Esq. | Last reviewed March 20, 2023
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Same-sex couples are treated the same as heterosexual couples when applying for lawful permanent residency (a green card) for a foreign spouse under U.S. immigration laws.
History of Same-Sex Marriage Laws
In 1982, Adams v. Howerton established that same-sex couples did not qualify as spouses for purposes of U.S. immigration. This decision was regardless of whether same-sex marriage was legal in the U.S. state where they got married.
The effects of that Supreme Court decision lasted for over 30 years. The decision prevented gay couples and lesbian couples from qualifying for the preferential treatment and protections afforded to spouses in heterosexual marriages.
In United States v. Windsor (2013), the Department of Homeland Security announced that it would no longer follow that ruling when processing visa applications. The decision ruled that the Defense of Marriage Act (DOMA) was unconstitutional because it violated equal protection and due process laws.
Two years later, the U.S. Supreme Court ruled in Obergefell v. Hodges (2015) that gay marriage is legal in all states.
Learn more about the intersection of same-sex marriage and immigration in this article.
Proving an Existing Marriage
Were you married within or outside of the U.S. or U.S. territories? There are two potential issues that might concern U.S. Citizenship and Immigration Services (USCIS) if you were married outside of the U.S.:
- Lawful forms of marriage
- The legality of same-sex marriage in another country
Lawful Forms of Marriage
Some forms of marriage are valid elsewhere in the world but not in the U.S., such as polygamy or marriage by local custom.
You have a valid marriage in the United States if:
- Your marriage was legally valid in the country in which it occurred
- It is not on the list of unacceptable forms of marriage found in the USCIS Policy Manual
Same-sex marriages are not legal in every country. This could create a situation where a couple was "married by local custom" but could not be married under the country's laws.
Because this form of marriage is not accepted by USCIS, the couple will need to legally remarry. The U.S. citizen partner can request a K-1 visa, a nonimmigrant visa for a fiancé.
Same-Sex Marriage: Green Card Investigation
The phrase "green card marriage" or "marriage-based green card" has a negative connotation of marrying only to get a green card. Any marriage that forms the basis for a spouse's immigration application must be a bona fide marriage.
The USCIS may suspect a marriage is a sham entered into only to get one spouse a green card. If they have suspicions, they have the authority to investigate.
They will visit your home and talk to your neighbors, friends, and family members. They will also conduct green card interviews.
They may examine your social media, family photo albums, rental leases, and financial records (including whether you have joint bank accounts) to determine whether you live and operate as a couple.
USCIS does not treat same-sex relationships any differently than spouses in opposite-sex marriages. If you are concerned about proving the validity of your marriage, or if you believe you have been discriminated against by a USCIS officer, get help from an experienced immigration attorney in your area.
Petitioning for Lawful Permanent Residency for Your Same-Sex Spouse
You can sponsor your same-sex spouse for a family-based immigrant visa if:
- You are a U.S. citizen; or
- You are a lawful permanent resident with a foreign national spouse
Your petition for your spouse and your spouse's admissibility as an immigrant is determined according to immigration laws of the U.S. government. You must file Form I-130 (Petition for Alien Relative) and any required accompanying material.
Generally, the law of the state where your marriage license was issued determines whether a marriage is legally valid.
The USCIS views same-sex marriage as valid as long as it is legally commenced. You can file an immigration visa petition for your spouse even if you have moved to another state after getting married.
Naturalization and Length of Residency for a Spouse in a Same-Sex Marriage
After being admitted to the U.S. as a lawful permanent resident, an immigrant green card holder is generally required to live within the U.S. for five years before formally becoming a U.S. citizen. This adjustment of status process is called "naturalization."
That naturalization period is reduced to 14-26 months if you have been living in a same-sex marriage with a U.S. citizen spouse.
How Long Do I Need To Be Married To Get a Green Card?
The USCIS will grant you conditional permanent residence for two years. After the two years passes you must file Form I-751.
When approved, this form removes the conditions of your residence in the U.S. After that, you will get a permanent green card.
Get Legal Help With Your Same-Sex Partner's Green Card
Marriage equality is the law of the land. The potential for confusion arises in other areas, such as whether same-sex marriage was legal when it commenced.
Informal civil unions, not legally recognized by a state, are the ones that are likely to need clarification.
An immigration lawyer can help you navigate difficult issues, such as
- Complete your green card application
- Prepare for your green card interview
- Apply for a K-1 fiancé visa
- Review your eligibility for a green card
- Provide other legal advice about the green card process
Working with an immigration attorney, especially one with experience helping LGBTQ+ married couples get green cards, can help smooth the way forward. Talk to an immigration attorney today.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
Contact a qualified family law attorney to make sure your rights are protected.