There are two United States Supreme Court decisions that have radically reshaped gay rights in the country. The first was a June 26, 2013, decision in United States v. Windsor, 570 U.S. 744, which held that the definition of marriage under the Defense of Marriage Act (DOMA) was unconstitutional and a violation of the Fifth Amendment of the United States Constitution. The second was the June 26, 2015, decision in Obergefell v. Hodges, 576 U.S. 644, in which the court determined that the right to marry was a fundamental right inherent in the liberty of the person.
Together, these rulings have tremendously eased the ability of a same-sex couple involving a foreign national to be able to be together in the United States, but same-sex couples should still seek the help of an LGBT immigration lawyer in Hinsdale when trying to get through the immigration process.
Whether you are lesbian, gay, bisexual, transgender, queer, questioning, intersex, or asexual, you should understand that same-sex couples can still face certain challenges in getting immigration forms approved. You will want to retain legal counsel for assistance navigating any potential difficulties.
Once gay marriage was legalized in the United States in 2015, same-sex couples began to enjoy the exact same rights and privileges that are afforded to opposite-sex couples, including the right to sponsor a foreign spouse for immigration to the United States. A citizen of the United States married to a foreign spouse of the same sex can now apply for an Immediate Relative (I.R.) visa, which are the visas that are widely available with no waiting period and have no limitations on the number of people who can immigrate.
Lawful permanent residents or green card holders in the United States can sponsor a foreign same-sex spouse for immigration by applying for a Family Preference (F) visa. Unlike the I.R. visas, there will be a limited number of F visas issued every year, and spouses of green card holders fall into the second preference category.
After a foreign spouse enters the United States under an I.R. visa or F visa, they can apply for adjustment of status and receive a green card. One important consideration to note here is that for a person to sponsor a same-sex spouse for immigration, a marriage has to be legally valid.
When a couple marries in a country that does not recognize same-sex marriage, or if they joined in a civil union instead of being legally married, they might not be able to receive a visa based on marriage. In such cases, the same-sex couple may need to make plans to get legally married before the foreign spouse can immigrate to the United States.
A United States citizen who plans to marry a same-sex partner currently living in a foreign country may apply for a K nonimmigrant visa. The same rules will apply to same-sex couples that apply to opposite-sex couples, and once a foreign fiancé(e) enters the country, the couple has 90 days to get married.
After becoming legally married, a same-sex spouse is allowed to apply for an adjustment of status and can receive a conditional green card that is valid for two years. Within 90 days before the conditional green card expires, the spouse should apply to remove the conditions of residence and ensure that they will be able to remain in the United States without the fear of deportation.
Are you in a same-sex couple and trying to help your partner immigrate to the United States? Minsky, McCormick & Hallagan, P.C. takes great pride in helping all LGBTQIA+ couples get the fair and equal treatment they deserve.
Our firm knows how complicated the immigration process can be for ordinary people, and we work closely with you, so you do not feel that you have been left to handle anything on your own. You can call us or contact us online to set up a consultation that will allow us to examine your case and outline the steps you will be able to take.