Monday, April 11, 2011

Seattle Immigration Lawyer | Are Immigration Benefits Available to Same-Sex Spouses?

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.

28 comments:

  1. What kind of immigration lawyer should I contact if my brother wants to marry a girl from France? Aren't there a lot of hoops to jump through to make that legal?

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  2. I have a quick question. I've got a friend who married a Russian girl and they're have trouble proving that theirs is "a bona fide marriage entered into not merely for immigration benefits." Should they hire an immigration lawyer?

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  3. Leslie,

    Your brother should look for a competent immigration attorney who handles spousal immigration cases. There are multiple routes that your brother and his girlfriend/fiancee may be able to use. The options will depend largely on where she is now, what her current immigration status is, and whether your brother is a US citizen or a permanent resident. If you would like a referral to a reputable immigration attorney close to where your brother lives, I would be happy to try to refer him to one. Feel free to call me or send me an email. See my law firm contact info on the upper right hand side.

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  4. Jack,

    Your friend should definitely talk to a competent immigration attorney about representation. The USCIS marriage fraud units are very active and can be downright aggressive. When fraud is suspected, hiring a good attorney ASAP is the best course.

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  6. Immigration for same sex couple is not clear yet as the law is not clear and it is about to change. In such scenario your suggestion is quite helpful wait for few times and when have clear idea then apply.
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  7. If you are married to a U.S. citizen, there is no waiting period or quota to delay your entry into the United States. You will be subject to the usual time period it takes to process your paperwork and for the government to make sure you are not excludable for any reason, such as criminal past or health problems. adjustment of status

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    1. The first thing you should think about while hiring a Los Angeles Immigration lawyer is that the range of services they offer you, as there are a number of aspects of the legal system of U.S.

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  8. I think you should hire a immigration lawyer. He will help you out about the issues of permanent residency and the process of getting a permanent residency as soon as possible.
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