Same Sex 'Green Card Marriage' Facts
In 1982, Adams v. Howerton established that same-sex couples (regardless of whether the same-sex marriage was legal in the state of their marriage) did not qualify as spouses for purposes of U.S. immigration. The effects of that decision lasted over thirty years, preventing gay and lesbian spouses from qualifying for the preferential treatment afforded to spouses in heterosexual marriages.
In 2013, the Department of Homeland Security announced that it would no longer follow that ruling when processing visa applications. Two years later, it was specifically overruled by the U.S. Supreme Court in its ruling in Obergefell v. Hodges, which legalized gay marriage in all states.
This means that a same-sex couple will be treated the same as an opposite-sex couple when applying for lawful permanent residency (a green card) for a non-American spouse. Learn more about same-sex marriage and immigration below.
Proving an Existing Marriage
Were you married within or outside of the U.S. or U.S. territories? If you were married outside the U.S., there are two issues of potential concern to USCIS regarding the legality of your marriage.
Lawful Forms of Marriage
There are forms of marriage that are valid elsewhere in the world that are not valid in the U.S., such as polygamy or marriage by local custom. If your marriage was legally valid in the country in which it occurred and is NOT on the list of unacceptable forms of marriage found in the USCIS Policy Manual, then it is legal in the U.S.
Because same-sex marriage is not legal in every country, a situation could arise in which a couple was "married by local custom" in the foreign-born spouse's home country but could not be married under the civil laws of that country. 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 Green Card Marriage
The phrase "green card marriage" has a connotation of marrying only in order to get a green card for permanent residency. Any marriage that forms the basis for a spouse's immigration application must be a bona fide marriage.
If USCIS suspects that a marriage is a sham, entered into only to get one spouse a green card, they have the authority to investigate. They will visit the couple's home and will talk to their neighbors, friends, and family. They will conduct personal interviews with the couple. They may examine a couple's social media, family photo albums, rental lease, and financial records to determine if they actually live together as a couple.
USCIS should not treat a same-sex married couple any differently than an opposite-sex couple. 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
If you are a U.S. citizen or a lawful permanent resident married to a foreign national, you can sponsor your same-sex spouse for a family-based immigrant visa. Your petition for your spouse, and your spouse's admissibility as an immigrant, is determined according to applicable immigration law and will be handled identically to that of an opposite-sex couple. You will file a 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. USCIS views same-sex marriage as valid so long as it was 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 is generally required to live in the United States for five years before they formally become a U.S. citizen (naturalization). If you have been living in a same-sex marriage with a U.S. citizen spouse, that naturalization period is reduced to three years.
Get Legal Help With Your Same-Sex Partner's Green Card
Marriage equality is the law of the land. Period. The U.S. has come a long way since 2015. The potential for confusion arises in other areas, such as whether the same-sex marriage was legal at the time it commenced. Informal unions, not legally recognized by a state, are the ones that are likely to cause confusion. Working with an immigration attorney, especially one with experience helping same-sex couples get green cards, can help smooth the way forward.
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.