FAQ


Does the U. S. government recognize marriages of lesbian and gay couples for immigration purposes?


Yes.

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The DOMA Project recorded several workshops with attorney Lavi Soloway on a variety of topics specifically for same-sex binational couples in preparation for the post-DOMA universe:








What is an I-130 Petition for Alien Relative?

An I-130 is a petition that is filed with the United States Citizenship and Immigration Services (USCIS) by an American citizen or lawful permanent resident (“green card” holder) for certain alien relatives.  Once the petition has been approved, that relative can apply for permanent resident status (a “green card”) in the United States or apply for an immigrant visa (a “green card”) through a U.S. Embassy abroad. No lesbian or gay binational couple should file an I-130 petition without the advice of an attorney with expertise in Marriage Equality and LGBT immigration issues.  Filing an I-130 petition can result in the beneficiary spouse being removed from the United States (if he or she is unlawfully present in the U.S.) or may limit the beneficiary’s eligibility for future non-immigrant visas, or both.


My spouse is here without legal status or on a temporary visa.  Can I file an I-130 for them to become a permanent resident?

No lesbian or gay binational couple should file an I-130 petition without the advice of an attorney with expertise in Marriage Equality and LGBT immigration issues.  Filing an I-130 petition can result in the beneficiary spouse being removed from the United States (if he or she is unlawfully present in the U.S.) or may limit the beneficiary’s eligibility for future non-immigrant visas, or both.


What if I am or my partner is transgender? Does that affect our ability to immigrate?

Any couple involving at least one transgender individual should seek competent legal counsel before filing any petition or application with the USCIS on the basis of the marriage.


We are a binational couple facing deportation proceedings.  What steps can I take to stop the deportation of my spouse?

The Obama administration has begun reviewing deportation cases and has provided “prosecutorial discretion” guidelines that allow same-sex binational couples to appeal for their cases to be closed if they are a low-priority (i.e. no serious criminal history, etc.) Couples are highly recommended to consult competent counsel with experience in removal proceedings, prosecutorial discretion requests, DOMA and LGBT immigration issues.


If I am being deported to my home country that will endanger my well-being because of my sexual orientation, what actions can I take?

If you have been or fear you will be persecuted in your home country due to your sexual orientation, you may be eligible for asylum.  Asylum cases are confidential.  If you have not applied for asylum within the first year of your last arrival to the United States you may be eligible for an exception to the “one-year filing deadline.”  LGBT individuals who are afraid to return to their country of origin are strongly recommended to consult with competent counsel with experience in sexual orientation and gender identity based asylum claims, removal proceedings, and LGBT immigration issues.


My spouse/partner has been in the U.S. legally for several years on a temporary visa(s) that has now expired, and is now facing the prospect of deportation despite strong ties to the U.S. and lack of ties to their home country. Why?

Government officials have recently stated that they will focus more on the high-priority cases, and set aside certain low-priority deportation cases where certain criteria are present. However, deportations still occur within these low-priority cases because the process of determining whether a case should be set aside or prosecuted is a discretionary one.


Still have questions? Please contact us at [email protected]

 

© The DOMA Project

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This is a pro-bono project of the law firm of Masliah & Soloway, PC. Posts on this website are offered for informational purposes only and do not constitute legal advice. The law firm of Masliah & Soloway, PC has offices in New York and Los Angeles. Our practice is limited to U.S. Immigration & Nationality Law.