It may be old news that same sex marriages are legal in the United States. In United States v. Windsor, the Supreme Court ruled that same sex marriage is recognized as valid by the federal government. The Obergefell decision made same sex marriage legal in all fifty states.
But what you may not know is that Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) couples who are married can now receive immigration benefits when they were not eligible to do so prior to the Windsor decision.
USCIS Treats Same Sex Married Couples The Same as Opposite Sex Couples
Upon the issuance of the Windsor decision, United States Citizenship and Immigration Services (USCIS) was directed to “review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse,” beginning on July 1, 2013. This means that USCIS will view marriages and the visa applications filed due to those marriages, in the same way it reviews marriages between opposite sex couples. This change in policy has created a tangible change in all LGBTQ communities throughout the United States.
Qualifications for a Same Sex Spouse of a U.S. Citizen
One common immigration benefit that leads to lawful permanent resident status (LPR) results from an immigrant’s marriage to a U.S. Citizen. There are generally two ways to obtain LPR status through marriage to a U.S. Citizen, and it depends on whether the immigrant is currently residing in the United States and whether they had been inspected by immigration on their last entry to the U.S.
To qualify for LPR status due to a same sex marriage, you first need to show that your marriage is recognized as valid under the jurisdiction where you were married. If you were married in California, for instance, same sex marriages were valid for only a short window of time a few years ago. However, now, same sex marriages are valid in all fifty states.
If you were married in a country that does not recognize same sex marriage, such as China or India, your marriage would not be considered valid under immigration laws. It is important to get an assessment of your marriage first before applying for any immigration benefits.
How Immigration Benefits for LGBTQ Couples Affect Children and Other Potential Beneficiaries
Obtaining your green card through a same sex marriage also allows for the granting of green cards or other benefits for dependents. For instance, in the example above, if the same sex spouse has a child that is not yet twenty-one years old, that child may be able to obtain lawful permanent residency at the same time as the same sex spouse.
Additionally, an individual who is granted asylum, but whose same sex spouse still resides in their home country, can now immigrate to the U.S. under “follow to join” benefits. There are numerous other benefits that may apply to LGBTQ couples.
Recent changes in law make benefits that have been available only to opposite sex spouses available to same sex spouses. Those who are part of a same-sex marriage should not be afraid of applying for immigration benefits that might be available to you now. The Law Offices of Vivek Mittal not only understands how to navigate the complexities of immigration law but has supported non-profits that work to empower LGBTQ communities, particularly in the South Asian diaspora. Contact us for a consultation.