US citizens and Green Card holders can now petition for their same sex spouses. The US Supreme Court recently overturned the Defense of Marriage Act (DOMA) and stated that it violated the Constitution. A section of this act prevented the US citizens and the permanent residents from sponsoring their same sex partners. Likewise, it also denied federal and immigration benefits to the same sex couples. DOMA also prevented the federal government from recognizing same sex marriages. But now, as the Supreme court has overturned DOMA, US citizens and permanent residents can start filing applications on behalf of their same sex foreign partners and help them to immigrate to the United States.
File Form I-130 for Your Same Sex Foreign Partner
If you are a US citizen or a permanent resident and if you are legally married to your same sex foreign partner, you can file Form I-130, Petition for Alien Relative, with the USCIS, to get your partner a US Green Card. You can file Form I-130, Petition for Alien Relative on your spouse’s behalf. At the time of filing Form I-130, you will have to submit photographs of yourself and your spouse. Along with that, you need to fill out and submit Form G-325A for yourself and another Form G-325A for your spouse. Likewise, your petition must accompany few other supporting documents to establish that you are legally married to your spouse.
You being a US citizen, can file Form I-130 for your spouse who is abroad or within America. Your spouse must either adjust his/her status to permanent resident status or go through consular processing. The following supporting documents must be submitted along with your immigrant petition, Form I-130, in both the cases.
- Copies of your marriage certificate
- Birth certificates of your children
- Copies of divorce documents (if any)
- Documentary evidence to prove that you and your same sex partner have a common residence
- Affidavits signed by people who can confirm that your marriage is bonafide.
Adjustment of Status
If your partner is in the United States, your partner can go for adjustment of status, a process that permits the immediate relatives of US citizens to adjust their status and become permanent residents, while in America. This process will not require your spouse to travel to his/her home country to get an immigrant visa. If your spouse is in America and if he/she is eligible for adjustment of status, he/she can file Form I-485 for adjustment of status while you file Form I-130, for him/her. You will have to submit the above mentioned supporting documents and establish that your marriage is genuine. You and your spouse will be required to appear for an interview and your spouse will be granted lawful status in America if the USCIS officer determines that your marriage is bonafide. Most of the questions that the immigration officers ask during the interview will be related to your marriage.
Your spouse will not become eligible for adjustment of status if he/she is currently living in a foreign country and he/she must go through the process called consular processing, in order to get an immigrant visa and to immigrate to America. In this case, your spouse must wait until the USCIS approves Form I-130 that you have filed. After that, he/she must file an application for an immigrant visa, in his/her home country. Your spouse must submit biometrics information and appear for an interview at the consulate, in his/her home country. If your spouse’s application is approved, an immigrant visa will be issued to your spouse with which he/she can travel to America.
In case your marriage is not more than two years old, your spouse will be issued a conditional Green Card, that cannot be renewed. After living in America for two years as a conditional resident, you and your spouse must jointly file an application to get the conditions removed. If you fail to file Form I-751, along with your spouse, to remove conditions on your spouse’s status, the status of your spouse will be terminated and your spouse will be placed in removal proceedings. Hence, you need to file Form I-751, along with your spouse at the right time. If you and your spouse are still married at the end of the two year period and if the application to remove conditions is accepted by the USCIS, a ten year unconditional Green Card will be issued to your spouse.