Adjusting Status Based on Same-Sex Marriages

Nov 20, 2015 | Bona Fide Marriage

As a Miami immigration lawyer, I have had the privilege of representing clients who are adjusting  status based on a same-sex marriage. Following a landmark Supreme Court ruling on June 26, 2015, same-sex marriages are now legal throughout the United States. As such, a valid marriage license from any one of the 50 states in the U.S.  can be used to  obtain the a green card for the green card applicant. However, this does not mean that adjusting status via a same-sex marriage is without its own unique challenges. Below are some frequently asked questions.

Following the Court’s ruling in United States v. Windsor, USCIS and U.S. Consulates made it clear that lesbian, gay, bisexual and transgender (LGBT) immigrants may obtain green cards and immigrant visas based on same-sex marriages to U.S. citizens or permanent residents. Nevertheless, same-sex married couples still face unique challenges in the immigration process.

I am in a same-sex relationship, but I currently live in a country that does not recognize same-sex marriages.
Some LGBTQ couples live in countries that do not recognize same-sex marriages, and are unable to travel to a place where such marriages are legal. The reasons include financial constraints, disability or illness, and difficulties obtaining the proper visa to travel to a country where same-sex marriage is legal.

USCIS follows the “place of celebration” instead of the “place of residence” rule. This means the same-sex marriage counts for U.S. immigration purposes as long as it is valid in the country where it occurred (except in certain situations, such as polygamous marriages). As such, if you are incountry that does not recognize same-sex marriages, it is very important that you exhaust all means to travel to and get married in a place that does recognize same-sex marriages. If you have any questions in regard to this, you may want to speak with a Miami immigration lawyer.

I was in a prior marriage to a member of the opposite sex. Does this raise red flags to the USCIS?
The short answer is: there is a very good chance that prior marriages to persons of the opposite sex could cause the USCIS to question whether a same-sex marriage is bona fide.

What happens if I don’t disclose my previous marriage to  a member of the opposite sex?
You must disclose your prior marriages must be disclosed in green card and immigrant visa applications. Additional scrutiny is expected when the U.S. citizen or permanent resident filed an immigrant petition for a prior spouse.

What happens if my previous immigration denied, or if marriage fraud was found in the prior case?
If the previous immigrant petition was denied or if marriage fraud was found in the prior case, it is especially important to consult a Miami immigration attorney before you file a new immigrant petition. The USCIS might also have concerns of marriage fraud if the same-sex marriage occurred shortly after termination of the opposite-sex marriage.

I am in a same-sex marraiage, but there is very little objective evidence that my marriage is bona-fide. What are my options?
Unfortunately, even though support for legalization of same-sex marriages is on the rise, some families, communities, cultures and countries still object to them. This lack of equal protection can create complications in immigrant petitions for same-sex spouses.

Many same-sex  couples have had to hide their relationship for fear of backlash from friends or family members. As such they may not be able to obtain affidavits from third parties, including relatives, friends and religious leaders. These affidavits are important because having personal knowledge of the bona fide nature of the marriage are key evidence in immigrant petitions. The USCIS can also inquire on whether family members or friends know about the marriage or attended  the marital ceremony. A same-sex couple who is not supported by family, friends or religious leaders might not be able to present such evidence.

To  make up for the shortage of traditional, objective documents, same-sex couples (like opposite-sex couples) may provide a detailed, written affidavit describing their relationship history, joint residence, and marital life. They can also submit more readily available evidence such as:

  • correspondences addressed to each spouse at the same address
  • statements from each other’s bank accounts showing withdrawals to pay rent or other shared expenses
  • affidavits from friends and relatives who support their marriage;
  • cards, letters and emails they have exchanged with each other
  • photographs of the two of them together on vacations and at events celebrating holidays and special occasions
  • hotel receipts, car rental invoices and travel itineraries showing trips they have taken together
  • evidence of shared membership at clubs that allow same-sex couple benefits

I intend to adjust status based on a same-sex marriage to a United States citizen. What are some factors to consider?
Ultimately, same-sex couples must prove their marriage is valid and bona fide just like opposite-sex couples. They should do five things to get their marriage-based green card or immigrant visa application approved: enter into a real marriage, establish a life together, present documentation of a bona fide marriage, prepare for the green card or immigrant visa interview. Further, they may want to consult with a Miami immigration lawyer to discuss their options.

If you would like more information on adjusting status via same-sex marriage, please contact Miami immigration lawyer The Law Office of Tatiane M. Silva, P.A., Esq. at (305) 895-2500 or visit our website at tmsilvalaw.com.