A common question that we get is whether same-sex married couples are eligible to apply for lawful permanent residence (also known as a “green card”). In June 2015, the Supreme Court ruled in the landmark case of Obergefell v. Hodges that the fundamental right for same-sex couples to marry is guaranteed by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Same-sex marriage is legal in North and South Carolina and both states recognize legal same-sex unions from other jurisdictions. Same-sex couples generally enjoy the same benefits as heterosexual married couples.
Some questions may arise when it comes to immigration laws regarding same-sex couples. The law allows for the spouse of a U.S. citizen, or legal permanent resident to petition for their spouse who can then apply for a green card. This family-based immigration process applies to all those who are legally married, including same-sex couples. This process can be complex to navigate, and it’s important to have a LGBTIQ+ immigration attorney like Mariana Toledo-Hermina to help you through the process.
What is a Green Card?
A green card is a common name used for the document issued by United States Citizenship and Immigration Services (USCIS) to each noncitizen who has been admitted for permanent residence as evidence of their lawful permanent status. A green card evidences your authorization to legally live and work in the United States.
Some of the categories under which a person can apply for a green card include family, employment, and refugee status, to name just a few. Of these, the most common category is a family-based application.
Who Can Apply for a Green Card?
An immediate relative or certain other relatives may apply for a green card through the family-based process. To qualify for a family green card the applicant must be a spouse, parent, unmarried child, or a son or daughter of a U.S. citizen or lawful permanent resident; or sibling of a U.S. citizen; or a fiance of a U.S. citizen. Applicants must submit the proper applications and documentation proving the legal relationship.
To be admitted as a fiance, you must legally marry the U.S. citizen who sponsored your application within 90 days of entry to the U.S. Unlike some types of visas or green cards, there is no limit to the number of green cards that the United States can issue each year based on an immediate family relationship.
How to Apply for a Green Card
Before you apply for a green card you should ensure that you are eligible. There are two main ways to apply for a green card depending on whether you are currently in the United States or not.
If you are already in the United States, you will need to apply for a change of status. If you are outside the U.S., you should apply through the consulate. If you are in the U.S. you will need to submit form I-485, an application to adjust your status. You must also submit petition I-130, Petition for Alien Relative.
It is important to note that you are not eligible for a green card if you are deemed to be a terrorist, or have been convicted of certain type of criminal activity in or out of the United States, among other inadmissibility issues. An experienced immigration attorney can help review your specific situation and provide you with guidance for the application process.
Proving Legal Marital Status
One of the steps in the process of obtaining a green card for family reasons is to prove the good faith of your marital relationship. A couple must not simply show that they are legally married, but must also show that the marriage is real. In other words, you can’t obtain a green card based on a sham marriage or one that is entered into solely for the purpose of obtaining an immigration benefit like a green card.
First and foremost, you must provide your marriage certificate. You will also need to submit documentation or proof that you and your spouse have a legitimate marriage. You may provide information when you submit your I-130 petition or in person when you attend the mandatory interview.
Documents to Prove Marital Status
It is generally best to provide as much documentation as possible to the USCIS as possible. Some of the documentation that will help prove your legitimate marital relationship includes proof that you are living together, proof that you have combined finances, or proof that you have children together.
Documentation is essential to proof of your marriage. Some other types of documents that may be important are joint bank statements, deeds or titles of property owned together, joint health policies, utility bills, insurance statements, and life insurance policies. You may also provide statements from relatives or friends.
An Experienced Immigration Attorney Can Help
The process to apply for a green card can seem complicated. It can take some time, often months, to complete. You will also need to pay the associated application fees. If you submit the incorrect form or fail to provide adequate information or documentation it will delay the process.
For those reasons and more, it’s best to seek help from an experienced immigration attorney. Your attorney will answer your questions and can help with the process to obtain a green card. Mariana Toledo-Hermina has helped families just like yours navigate the green card process in the United States.
To learn more about same-sex couples applying for green cards, contact our knowledgeable South Carolina at the Law Office of Mariana Toledo-Immigration today for a consultation.