Marriage Equality Resource Center (Continued)

7. When does my fiancé/e or spouse have to undergo consular processing?

Consular processing is required when the foreign national entered the U.S. without inspection (EWI) and has no legal immigration status. These applicants must return to their home country to complete the immigration process. U.S. citizens residing in a marriage equality country may remain with their spouses while they consular process, depending upon that country’s visa laws.

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8. What if my undocumented spouse is barred from returning to the U.S.?

If the problem is EWI requiring consular processing, waivers are now available to shorten the 3 to 10-year bar from returning to the United States. A different type of waiver is required if criminal activity is involved. Certain convictions can be waived so that departure from the U.S. is not permanent; others forever bar the spouse from future immigration relief. Waivers are based on extreme and exceptional hardship to the qualifying U.S. citizen or LPR spouse and family.

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9. How long do we have to wait for an immigrant visa to return to the U.S.?

Consular processing times vary among countries. U.S. citizens may return with their spouse from a marriage equality country after the consulate approves the marriage-based petition. This may take several months. If the country does not recognize marriage equality, the couple may marry in the nearest country that does or submit a fiancé/e visa to marry in the U.S. However, once foreign nationals obtain a green card or LPR status, they must live in the U.S. Traveling back and forth is no longer possible. Timing is critical to avoid complications between spouses and family.

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10. Are my spouse’s children eligible for immigration relief?

Yes. U.S. citizens sponsoring spouses for LPR status may also petition for the spouse’s children. Although the petition refers to them as “step-children,” this only refers to a particular type of relief based upon the U.S. citizen’s marriage to the biological parent. This distinguishes non-biological children from adoptees and other immediate relatives. “Following to join” through a parent’s petition requires that the couple marry before the children turn 18. The children must be under 21 and not married at the time of filing to benefit from their parent’s petition.

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11. How does the ruling affect work visas and the ability to obtain employment?

Employment-based visas do not preclude the filing of a separate petition based on marriage. Unlike non-immigrant work visas, marriage-based green cards are not “capped” at a certain number every year. In many cases, the backlog of cases is not as bad. But these petitions also require proof that the U.S. citizen has sufficient income to support the listed beneficiaries, which may include the spouse and several children. Obtaining legal status through work also allows employees to apply for citizenship after only 3 years; marriage-based petitions require 5.

Applications for authorization to work in the U.S., other than a work visa, are filed with the marriage-based petition. The processing times for employment authorization cards vary, but they are generally issued within 90 days of filing. This allows the spouse to work while the immigrant visa is pending. Immigration officers should schedule an interview with the couple by 9 months.

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12. Is it necessary to obtain legal counsel?

Yes, seeking legal help is highly recommended, especially with LGBT-related issues. Marriage-based petitions are already fraught with complications and hardship; same-sex couples may still face additional barriers. Approval depends entirely upon the ability to demonstrate a bona fide relationship through evidence. For LGBT couples, obtaining the same documents can be challenging. An immigration lawyer familiar with LGBT issues is critical to obtaining relief.

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To Obtain LGBT-Related Immigration Benefits for Your Spouse and Family, Consult an Experienced Immigration Law Attorney Today

At the Law Offices of Jacob J. Sapochnick, we know that same-sex couples have already beaten incredible odds, including the pressure of higher scrutiny. San Diego immigration lawyer Jacob J. Sapochnick also knows that obtaining benefits is complex, and they are not always awarded to those who deserve them most. Mr. Sapochnick is dedicated to resolving LGBT-related immigration issues to the greatest degree possible, and defending the rights of people closest to you. For up-to-date information on how this ruling affects you and your family, call (619) 819-9204 or contact us online.

FAQs for Post-Defense of Marriage Act issued by the Department of State

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