Does the U. S. government recognize marriages of lesbian and gay couples for immigration purposes?
Although it is currently possible for same-sex couples to get married in Massachusetts, Connecticut, Vermont, New Hampshire, Iowa, New York, Maine, Washington, Maryland and the District of Columbia, those marriages are not recognized by the federal government, including for immigration purposes. This is due to the Defense of Marriage Act (DOMA), enacted in 1996, that defines federal recognition of marriage as between a man and a woman.
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. An LGBT American citizen who files an I-130 petition on behalf of their same-sex spouse will receive a denial on the ground that their marriage cannot be recognized due to the Defense of Marriage Act. 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?
The USCIS will not approve any I-130 petitions filed by lesbian or gay binational couples. 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?
Because DOMA prevents the federal government from recognizing marriages entered into by same-sex couples, any couple that includes one or more transgender individuals will need to prove that they have entered into a valid marriage based on where the marriage was performed and that the marriage was between two individuals of the opposite sex. Unless USCIS agrees that the marriage is between two persons of the opposite sex, DOMA will prevent that marriage from being recognized for immigration purposes. 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.
My partner is in the U.S. on a now expired visa and we wish to get married, will our marriage give my partner legal status?
Because DOMA prevents the federal government from recognizing the marriages of gay and lesbian couples, it is currently impossible for such a marriage to give the foreign spouse status.
I am an American citizen and my partner is from another country. If we are legally married abroad and we want to return to the U.S. what are steps available for us to take to attempt to have our marriage recognized in the U.S. for immigration purposes as well?
Although your marriage is recognized in another country, under DOMA, the U.S. government only recognizes marriages between a woman and a man regardless of the marriage laws of other nations. Therefore there is currently no way to have the federal government recognize your marriage for immigration purposes.
I am an American citizen and my partner is from another country. We recently married in one of the states (or the District of Columbia) where marriage is available to gay and lesbian couples. What are steps for us to take to attempt to have our marriage recognized under U.S. federal law for immigration purposes as well?
Although your marriage is recognized in the state in which it was solemnized, and in several other states, under DOMA, the U.S. government only recognizes marriages between a woman and a man regardless of the marriage laws of other nations. Therefore, there is currently no way to have the federal government recognize your marriage for immigration purposes.
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.) However, prosecutorial discretion is not a guarantee that any one case will be successful and 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.