Same-Sex Family-Based Immigration

On June 26, 2013, the Supreme Court’s decision in United States v. Windsor effectively rendered Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. It also ended the unequal treatment of opposite-sex and same-sex couples in matters pertaining to immigration. Today, the United States grants equal treatment to same-sex married couples, who now enjoy the same rights and benefits under U.S. immigration law as opposite-sex couples do.

The Lyttle Law Firm is proud to support the LGBT community, offering our services to gay, lesbian, transgender, and non-cisgender immigrants and their families, helping them meet their immigration goals.

Our services include:

Marriage-Based Green Cards and Visa Petitions for Same Sex Couples

If you are a U.S. citizen or lawful permanent resident in a same-sex marriage with a foreign national, you can file an I-130 visa petition to sponsor his or her foreigner spouse. Your eligibility to file a petition for your spouse and your spouse’s acceptability as an immigrant at immigration visa application/adjust state stage will be determined based on applicable immigration laws and not on the basis of your same-sex marriage.

This means that, in order to get a green card based on a same-sex marriage, you must be:

  • Lawfully married in the United States or abroad
  • Able to demonstrate that the marriage is based on genuine relationship
Fiancé Visas for Engaged Same-Sex Couples

If you are a gay, lesbian, or non-cisgender U.S. citizen engaged to be married to a foreign national of the same sex, you can file a fiancé petition or a Form I-129F. Regardless if the petitioner is a resident of a state that resists the Supreme Court’s decision in Obergefell v. Hodges, so long as the pertinent immigration requirements are met, a same-sex engagement will be treated no differently as an opposite-sex engagement.

Important points to remember include:

  • The holder of the fiancé petition may enter the United States and should get married within 90 days of entry.

  • When it comes to family-based immigration, the same rules that to opposite-sex couples also apply to same-sex couples. 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 to partners of U.S. citizens.

  • If the marriage has yet to reach two years by the time USCIS releases the green card, the foreign national’s lawful permanent resident status will be conditional.

  • Before the green card expires, the immigrant must file an I-751 petition to remove conditions on residency. This applies to any marriage, same-sex or otherwise.

Employment-Based Immigration for LGBT Spouses

Immigration law affords other legal options for same-sex couples to be together in the U.S.

  • Diversity Immigrant Visa applicants, also known as Green Card Lottery winners, can convey lawful permanent resident status to their same-sex spouses.

  • Same-sex spouses with E-1 and E-2 visas can apply to have derivative visa status accorded to their same-sex partners.

  • Likewise, H-4 visas are available to LGBT individuals who want to accompany their same-sex partners with H-1B work visas.

Asylum for Same-Sex Spouses

If you have been admitted to the United States under refugee or asylum status, you can file a Form I-730 to petition follow-to-join benefits for your same-sex spouse (as well as children under the age of 21).

When Should You Hire an Immigration Attorney to Assist in a Family-based Immigrant Visa?

Regardless of the nature of your marriage, family-based immigration is often a complex process, requiring the review of several documents and requirements before their submission to USCIS. These requirements will depend on the family-based preference category or immediate relative category, and whether the case will 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, call Austin, Texas, immigration lawyer Daniella Lyttle of the Lyttle Law Firm. 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.