The recent U.S. Supreme Court’s rulings striking down both Proposition 8 and the Defense of Marriage Act (DOMA) were very big news for immigrants in same sex relationships. The combination of the two rulings meant that, suddenly, for the first time, Lesbian, Gay, Bisexual and Transgender (LGBT) immigrant spouses of U.S. citizens can marry in California and get their green cards through the US immigration process.
Immediately following the decision, the Department of Homeland Security announced that immigrants in same-sex marriages will be allowed to file for residence as a result of the U.S. Supreme Court’s decisions. The Immigration Service began approving petitions right away. Our office has been filing these petitions as of early July.
Many of these couples have been waiting decades for this moment, so there are a significant number of couples affected by this ruling.
This article will explain how a LGBT citizen petitions for their spouse for permanent residence in the United States, how the process moves forward and the approximate wait involved until the immigrant spouse gets their green card.
A spouse of a US citizen is an ãImmediate relativeä under the Immigration system, which means that this category does not have any limit or cap on the number of visas. Therefore, there is no ãwaiting periodä other than the amount of time the Department of Homeland Security (DHS) or the U.S. consulate abroad takes to process these visas.
If the immigrant came here with a visa, the entire procedure can usually be completed here, lasting about 4-6 months. No pardon is necessary in this case. After the marriage takes place, application forms must be submitted along with other forms and supporting documents to prove the validity of the marriage. At the end of the process, an interview takes place at the DHS office. Conditional permanent residence is granted for two years. The immigrant spouse can obtain citizenship 3 years later.
If the spouse is outside the U.S., then an application is filed here and once approved, the relative goes through ãconsular processingä back home in their home country.
In the case where the immigrant came to the US without a visa, the process is a bit longer and more complicated, usually requiring that the immigrant obtain a “pardon” from the USCIS. The pardon process for married LGBT couples is the same process that applies to heterosexual couples.
In short, to obtain the waiver, one needs to prove ãextraordinary hardshipä would occur to the spouse if the immigrant is not allowed to come back to the US. Since March, the Obama Administration implemented a major immigration policy change that allows eligible spouses of US citizens to apply for the pardon inside the US.
The couple applying for the waiver should submit as much documentation as possible to support these arguments of hardship. It is helpful to have the spouse meet with a counselor or psychologist to document any anxiety, depression, or trauma the family member would suffer if the immigrant is required to return to their home country. We also recommend submitting other statements from relatives, friends, employers, co-workers, clergy and others in support focusing on the good moral character of the immigrant and their importance to their family members.
If the pardon is approved, the immigrant spouse does need to have a short interview at the US consulate in their home country in order to get their lawful permanent resident status. If the immigrant is otherwise eligible, this interview should be simply a formality.
It is recommended that any immigrant obtain legal advice before leaving the country as part of this or any other immigration process.
This decision represents the arrival of “immigration reform” for many LGBT immigrants who are in long-term relationships and have been waiting for a change in immigration law. I have clients that have been waiting 20 years for this day. It is a major advance to making our immigration laws more rational and humane.
CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law since 1984 and has been recognized as one of the top immigration lawyers in Northern California for the last seven years by San Francisco Magazine ãSuper Lawyersä edition (2006-2012). He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.
WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case. If you would like such advice from our office, call (415) 777-4445 (San Francisco); (916) 349-2900 (Sacramento) or (707) 433-2060 (Santa Rosa) (707) 376-1010 (Ukiah) or (707)244-2272 (Napa).