It has been almost two years since the U.S. Supreme Court found DOMA unconstitutional in United States v. Windsor, and opened the door for LGBT couples to be eligible for a variety of immigration benefits, including the ability to sponsor a foreign spouse for permanent residency (i.e. a green card).
Since then, the federal agencies involved in reviewing and deciding applications and petitions for immigration benefits based on marriage, namely the U.S. Citizenship and Immigration Services (USCIS) and Department of State (DOS), have been directed to review applications filed by same-sex couples “in the same manner as those filed on behalf of an opposite-sex spouse” and to “treat same-sex marriages exactly the same as opposite-sex marriages.”
Among other things, all couples applying for an immigration benefit based on marriage must first demonstrate that the marriage is bona fide, meaning that it was not entered into for the sole purpose of procuring an immigration benefit. The couple must provide evidence that they intend to establish a life together. Same-sex couples, however, sometimes encounter unique challenges in demonstrating the bona fide nature of their marriage. For additional details about the green card application process for marriage-based applications, click here.
Same-sex couples are sometimes unable to provide certain documents that are commonly included in applications submitted by opposite-sex couples.
For example, prior to June 26, 2013 and the invalidation of DOMA, same-sex couples were legally unable to file joint federal tax returns. Even now, same-sex couples living in states that do not recognize marriage equality are unable to file state tax returns jointly. Furthermore, some couples avoid co-mingling their finances, adding a same-sex spouse to an employer-sponsored insurance or retirement policy, or listing the same-sex spouse on a lease or mortgage out of fear of discrimination. This fear is often greater for couples living in states that don’t recognize marriage equality and don’t have anti-discrimination protections based on sexual orientation, and especially for multi-national couples where the foreign national spouse is living abroad in a country that persecutes LGBT individuals.
LGBT couples sometimes have a previous opposite-sex marriage that could raise questions regarding the validity of their current same-sex marriage.
LGBT individuals sometimes have an opposite-sex marriage before their current same-sex marriage, which may call into question the bona fide nature of their current marriage. There may be valid reasons why this is the case. An individual may be bisexual, may have only come “out” later in life, and/or may have felt familial, societal, cultural, and/or religious pressure to marry to combat questions about their sexual orientation. These reasons should not suggest that the previous marriage was fraudulent, nor that the current marriage is not bona fide, but the couple may be required to explain these reasons and even provide documentation as to the bona fide nature of the previous opposite-sex marriage. It is the burden of the couple to demonstrate the bona fide nature of their current marriage, and the government has a duty to determine if the foreign national spouse ever engaged in marriage fraud. Pursuant to federal law, an individual who is found to have engaged in marriage fraud is barred from ever receiving a green card.
LGBT individuals are not always “out” to their friends and/or family.
Coming “out” is a deeply personal choice, and some LGBT individuals choose to keep their sexual orientation and/or same-sex marriage a secret from their friends, family, and/or co-workers. As a result, they may not be able to provide the type of documentation that is often included in applications by opposite-sex couples, such as affidavits from friends and family, and photos together with friends and family.
Fortunately, the government is aware that “some documentary evidence routinely seen in opposite-sex cases may not be available in same-sex marriage cases” and has stressed that “adjudicators should focus on the evidence in the record” and that applicants “should not be penalized for failing to produce certain documents the adjudicator may expect.”
The list of possible documents is endless, but the following is a sample of the types of documents that may be used:
In general, any document may be used to demonstrate the bona fide nature of a marriage if it lists the couples’ names and/or their shared residence, and a date. If you have questions regarding how to demonstrate the bona fide nature of your marriage, or how to proceed with your case, please contact an immigration attorney at Minsky, McCormick & Hallagan, P.C.