Proving the bona fide nature of your same-sex marriage

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).

Show your flag - DC Gay Pride Parade 2012 (7171189087)

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.”

Proving that your marriage is real

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.

Unique challenges for same-sex couples in the green card application process

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.

If same-sex marriage cases are treated the same as opposite-sex marriage cases, are same-sex couples’ applications penalized because of the challenges listed above?

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.”

So what kinds of documents can you use to establish the bona fide nature of your marriage?

The list of possible documents is endless, but the following is a sample of the types of documents that may be used:

  • Jointly filed tax returns;
  • Birth certificates of children born to the couple and/or adopted by the couple;
  • Proof of joint home ownership or rental (ex. mortgage, deed, lease);
  • Proof of joint bank accounts and/or credit card accounts;
  • Proof of joint ownership of other assets (ex. car title, installment payment for furniture purchase, etc.);
  • Proof of joint insurance policies and/or listing the other spouse as a beneficiary of an insurance policy;
  • Photos of the couple at their wedding ceremony, with friends and/or family, from vacations taken together, during celebrations (ex. birthdays, holidays, weddings), and throughout the history of their relationship;
  • Credit reports for the couple to demonstrate joint residential history;
  • Evidence of travel together (ex. airline tickets, hotel reservations, passports stamps);
  • Evidence of expenditures for the engagement and/or wedding (ex. receipts for rings, venue, catering, music, flowers, etc.) and other evidence related to the engagement and/or wedding (ex. newspaper announcements, wedding invitations);
  • Legal records, such as prenuptial agreements, wills, trusts, powers of attorney, contracts entered into jointly, etc.;
  • Evidence of communication between the couple (ex. e-mails, greeting cards, phone records);
  • Evidence of the couple’s pre-marital or marriage counseling (ex. letter from a therapist, receipts);
  • Evidence of couple belonging to the same religious organization, gym, social group, volunteer organization, etc.;
  • Any records that show that the couple has been using the same residential address;
  • Evidence that one spouse took the other spouse’s last name or that the couple has combined their last names;
  • Letter from a current or former employer showing a change in records to reflect the new marital status upon marriage, and/or that the spouse was designated as the person to be notified in the event of an accident, sickness, or other emergency;
  • Gas, electric, telephone, and other utility bills as evidence of the same residence;
  • Invitations that the couple has received to weddings, birthdays, and other events; and/or
  • Evidence that one spouse has paid for the expenses (ex. medical, school, etc.) of the other spouse.

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.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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