One question that I have been asked as an immigration attorney is: what is the best way for a same-sex couple—when one person is a US citizen—to get married and live together in the US? Like the answer to many legal questions, the answer is not clear. The issue of how same-sex couples are treated under our immigration laws is currently being litigated and will probably have to be decided by the U.S. Supreme Court in the next several years. As of right now, the immigration laws in the U.S. only recognize marriage as being between a man and a woman. This is still true despite the fact that in February of this year, the Obama Administration announced that the federal law defining marriage this way (D.O.M.A.) is unconstitutional.
Therefore, with this uncertainty in mind, it would be very risky for same-sex married couples to affirmatively seek immigration benefits based on their marriage. At the same time, it might be risky for same-sex couples to get married marry if the immigration status of one of them is dependent on that person maintaining a foreign residence, i.e., in the case of a non-immigrant visa holder.
Caveats aside, theoretically, an unmarried, same-sex couple could contemplate moving to a U.S. state that recognizes and issues marriage licenses to same-sex couples (currently: Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and D.C.) and then seeking adjustment of status to that of a permanent resident based on the state-recognized marriage. Of course, like any other marriage- based application, they would have to show that it was a bona fide marriage entered into not merely for immigration benefits.
However, the safest option right now would probably be to wait for the law to change before filing any immigration application based on a same-sex marriage. Same-sex partners should speak with an immigration attorney before filing any immigration application and before getting married. It might well be worth exploring other non-marriage-based visa options for traveling and living in the U.S. temporarily or permanently. And, in cases where marriage to a partner who is in a foreign country is contemplated, it is often best if the U.S. citizen partner consults with an immigration attorney first, on his or her own, without involving the foreign-based partner.
