Green Cards for Same Sex Couples

San Diego immigration lawyer Jacob J. Sapochnick is a recognized leader in defending marriage equality as it pertains to immigration rights. He is dedicated to helping same-sex couples and the lesbian, gay, bisexual, transgender (LGBT) community obtain lawful permanent resident (LPR) status and a path to U.S. citizenship. The Law Office of Jacob J. Sapochnick works diligently to overcome the systemic discrimination that denied your family equal treatment under the law, always keeping you up-to-date on the progress of your case.

In one of the most eagerly-anticipated rulings of 2013, in Windsor v. United States, the U.S. Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. The decision cleared the way for same-sex and LGBT couples who are legally married, for example under the laws of the 12 states and the District of Columbia that recognize same-sex marriage, to receive the same federal benefits, including immigration relief, that were previously withheld based on discrimination. In fact, same-sex couples are now entitled to review of previously denied petitions under new guidelines.

Although the Supreme Court ruling does not require all states to legalize same-sex marriage, it does require equal treatment of these couples under federal immigration law. This means that LGBT spouses and families are entitled to equal benefits based on marriage, including:

• I-130 Petition for Alien Spouse and Stepchildren
• I-485 Adjustment of Status to Legal Permanent Resident (LPR)
• K1 Fiancée Visa to enter U.S. for marriage
• K3 Marriage or Spousal Visa for foreign nationals
• K4 Visa for Unmarried Children of foreign spouse
• Employment/Work Authorization Document
• Review of denials, deportation, and appellate relief

The repudiation of DOMA’s Section 3 will continue to have far-reaching implications in immigration law. LGBT families will now be able to get green cards and receive the same marriage-related benefits, allowing couples to stay in the United States or return home after years in exile.

Bi-national, same-sex couples are held to the same standard as other petitioners for immigration relief. U.S. citizens and LPRs that apply for green cards are eligible for benefits, regardless of their place of residence. But approval requires meeting certain standards, including:

• Marriage in state or country recognizing marriage equality
• Entrance into valid marriage after “bona fide” relationship
• Unmarried stepchild is under 21 if following to join parent
• Valid marriage to spouse before (step)child’s 18th birthday
• Adoptive parent adopted child before 16th birthday
• Adopted child in parent’s legal custody for 2 years
• Consular processing for spouses without lawful status

Like other visa petitions, the burden falls on the applicant to prove that the marriage was legally valid where it took place, not where the application is filed, and that the couple wed in good faith, not for monetary consideration or to procure admission to the United States.

The invalidation of Section 3 of DOMA essentially bypasses the stalemate over comprehensive immigration reform by providing a pathway to citizenship for same-sex couples. But reform is still imperative to LGBT detainees, asylum seekers, and children brought to the U.S. as minors who would benefit from the DREAM Act. Thus, LGBT families must continue the fight for immigration equality.

If you have questions about eligibility for immigration relief, contact experienced San Diego immigration attorney Jacob J. Sapochnick today. We are well-versed in complex issues involving LGBT families, international adoptions, and same-sex petitions. Because these couples may face higher scrutiny and evolving challenges, qualified legal representation is critical. At the Law Offices of Jacob J. Sapochnick, we fight for your interests and the rights of people closest to you. Let us help you seek legal status and the immigration relief you deserve. Call 619.819.9204 for a confidential consultation or contact us online.