What to Know About Immigration & Same-Sex Marriage


As of June 26, 2015, the Supreme Court has declared same-sex legal in all states. So what does that mean for same-sex couples when one-half of the pair is either undocumented or in the U.S. on a temporary visa?

A few weeks ago, discussion about same-sex marriage and immigration came up between myself and a group of friends. We came to realize that number one: the case is a lot more common than I realized, and two: a lot of people in same-sex marriages or serious relationships considering marriage with someone who is not a U.S. resident or citizen, don’t really know how to go about petitioning for residency, or that it’s even a possibility to petition on behalf of their partners. Understandably so, as being in this situation can be a bit scary if you don’t have all the information, especially if one is in the United States illegally.

Well, we’re going to help you out with that. We asked my good friend Jackie (last name withheld), who works in immigration law, some basic questions you may have if you’re married to or are thinking of marrying someone who is not a U.S. citizen, or vise versa.

GettyImages-88760199via Getty

AfterEllen.com: Overall do gay couples have all the same rights as straight couples when petitioning on behalf of a husband/wife for citizenship/residency?

Jackie: Yes, gay couples have the same rights when petitioning their spouse for residency.

AE: Assuming the applicant does everything in a timely manner and assuming they are approved, how long is the process from applying for residency and receiving those benefits?

Jackie: The process can take between six to nine months if the spouse entered with a Visa, he/she is protected by 245(i), or if entered with inspection (ex. Advance Parole). However, if the spouse entered the country illegally, the process can take up to a year and a half. The I-601a waiver must be summited for individuals who entered illegally.  


AE: How much would this process cost?

Jackie: USCIS fees can vary between $1,490 without the fine and $2,490 with the fine. Attorney fees vary by area. 


AE: What are some roadblocks the applicants can come across? What are some basic requirements to guarantee approval, and what can affect the applicant’s chances?

Jackie: Some roadblocks can include not having enough evidence to prove a good faith marriage and not having a co-sponsor if the petitioner does not work or makes enough income.


AE: How long after residency is approved can an individual apply for residency?

Jackie: You can apply for citizenship after being a Legal Permanent Resident for three years and you are still married. However, if you are no longer with your spouse, you have to wait five years to apply for citizenship.


AE:  What type of interviews do applicants go through?

Jackie: The questions asked at the interview are at the discretion of the immigration officer, but common questions can include: What time does your spouse get home from work/school? What time does your spouse get up in the morning? etc.


AE: Are there home visits?

Jackie: Home visits are at the discretion of the immigration officer. If the immigration officer suspects that there might be fraud involved he has the right to follow up with a home visit.


AE: What tips do you have for couples thinking about petitioning?

Jackie: What couples should do if they plan to petition their spouse is to document the relationship. Include them in your taxes, health insurance, bank accounts, lease agreements, utility bills, etc.


AE: What tips do you have for couples looking for an immigration attorney to represent them so they are not scammed?

Jackie: Always check on the State Bar to make sure that they are licensed to practice law. Do not go to notaries.  

More questions? Visit ImmigrationEquality.org

Zergnet Code