Same-Sex Family-Based Immigration

SEEKING IMMIGRATION BENEFITS BASED UPON A FAMILY RELATIONSHIP FOR SAME-SEX COUPLESTHE SUPREME COURT OF THE UNITED STATES HELD THAT SECTION 3 OF THE DEFENSE OF MARRIAGE ACT (DOMA) IS UNCONSTITUTIONAL. EFFECTIVE IMMEDIATELY, SAME-SEX COUPLES CAN NOW APPLY FOR FAMILY-BASED IMMIGRATION BENEFITS.

Same-Sex couples can now file family-based petitions with USCIS. The cases will be processed the same way as those filed on behalf of opposite-sex couples and the same requirements must be met.

The Immigration and Nationality Act divides immigration benefits for family members in two categories. The first is “Immediate Relative” and the second is “Family Preference.”

For same-sex couples, as it is also the case for opposite-sex couples, an “Immediate Relative” is:

  • A spouse;
  • A child under 21 years old;
  • An adopted child; or
  • A parent

of a United Stated States citizen who is at least 21 years old. There is no limit on immediate relative visas granted in a given year. Immediate Relatives are also eligible for a process called Adjustment of Status, where the Immediate Relative does not need to leave the United States to process his/her immigration case as long as the Immediate Relative was lawfully admitted and meets the requirements for admitted immigrants under the Immigration and Nationality Act.

Family Preference Visas refers to:

  • Unmarried children of U.S. citizen who are older than 21;
  • Spouses, minor children, and unmarried older children of U.S. permanent residents;
  • Married sons and daughters of U.S. citizens;
  • Siblings of U.S. citizens, provided the U.S. citizen is at least 21 years old.
IF YOU ARE A U.S. CITIZEN OR LAWFUL PERMANENT RESIDENT IN A SAME-SEX MARRIAGE TO A FOREIGN NATIONAL YOU CAN NOW SPONSOR YOUR SPOUSE UNDER THE FAMILY-BASED IMMIGRATION PROVISIONS OF THE U.S. IMMIGRATION AND NATIONALITY ACT.

One of the requirements for family-based immigration is that you must be legally married to your spouse. USCIS will look at the law of the place where the marriage took place when determining whether a marriage is “valid.” For example, Texas does not currently recognize same-sex marriages, but if you were married in California, and now reside in Texas, you will still be able to apply for family-based immigration benefits due to the fact that immigration law is federal law and not state law. Adjudicators in San Antonio and throughout Texas will be evaluating marriages from other states even though the case will be processed in the state of Texas, where same-sex marriages are still not recognized.

There is a distinction between same-sex marriages and civil unions. There are currently 13 states that have legalized same-sex marriage. Those States are: California, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and in addition, the District of Columbia. There are currently 7 states that have created some form of civil union or rights similar to marriage for same-sex couples, but it is still not equivalent to same-sex marriage. Those States are: Colorado, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Wisconsin. It is important to note that for immigration benefits, the same-sex couple must be legally married. This essentially means that couples with civil unions or legal rights that are similar to same-sex marriage but are not same-sex marriage, will still not be able to take advantage of immigration benefits unless they become legally married.

But what about if the same-sex marriage took place in another country? If the foreign country recognizes same-sex marriage and makes no distinction between same-sex marriage and opposite-sex marriage (meaning the rights and procedures are the same), then presumably, it should be acceptable for U.S. immigration authorities. However, because the Supreme Court case was so recently decided, these types of cases in general will likely take a longer period of time and may require the attorney to research same-sex laws in the foreign country to argue that it is equivalent to the U.S. same-sex marriage provisions for all purposes. If you were married abroad, it is best to meet with an experienced immigration lawyer prior to filing your U.S. based immigration petition.

It is important to keep in mind that when it comes to family-based immigration, the same rules apply as with couples of the opposite sex. For example, Adjustment of Status, a process by which a foreign national can adjust to become a permanent resident within the United States, still only applies for partners of U.S. citizens.

The implementation of the U.S. Supreme Court ruling does not affect the family preference or immediate relative categories already created or create new categories under the Immigration Code.

WHEN SHOULD YOU HIRE AN IMMIGRATION ATTORNEY TO ASSIST IN A FAMILY-BASED IMMIGRANT VISA?

Family-Based immigration can be a very burdensome process given the number of requirements and documents that must be reviewed and submitted to USCIS. The requirements differ depending on the family-based preference category or immediate relative category, and also based on whether the case would be processed within the United States or through a U.S. Consulate abroad.

If you or someone you know is interested in obtaining family-based immigration benefits for a same-sex couple, Austin, Texas, immigration lawyer Daniella Lyttle of the Lyttle Law Firm, can help. Ms. Lyttle has helped many clients through the family-based immigration process and regularly handles these types of cases. Ms. Lyttle can handle applications for Petitioners and Applicants from anywhere in the United States, as immigration law is federal law.

The Lyttle Law Firm can give you the peace of mind that this difficult process is as smooth as possible. We will guide you every step of the way. Once hired, the Lyttle Law Firm will work all aspects of the case, while keeping clients informed and taking the stress out of the process.

If you need assistance, please contact us at (512) 215-5225 to set up a private consultation.