American citizens and permanent residents can now apply for Green Cards for their same-sex spouses.
On June 26, 2013, the U.S. Supreme Court decided that section 3 of the 1996 Defense of Marriage Act (DOMA) violated the Constitution. Section 3 of DOMA was a law that denied federal benefits to legally married same-sex couples. It was determined that not recognizing established gay marriages and not offering them federal benefits was in violation of the Fifth Amendment, which is the right to due process of law.
Applying for a Gay Marriage Green Card
If you are a U.S. citizen or a U.S. permanent resident and you are legally married to your foreign same-sex partner, you can file Form I-130, Petition for Alien Relative, to get him or her a Green Card.
You would be filing Form I-130 on your spouse’s behalf.
When filing Form I-130, you will have to submit a passport-style photo of yourself and a passport-style photo of your spouse taken within 30 days of the date of filing. It will also be required for you to complete and sign one Form G-325A for yourself and one Form G-325A for your spouse. Form G-325A is used to collect your biographic information.
To prove that you are legally married to your spouse, you must provide the following documents, if they apply:
- A copy of a marriage certificate;
- Copies of divorce documents if you or your spouse were in previous marriages;
- Documents showing your finances together;
- Documents showing you have a common residence;
- Birth certificate(s) of your children together; and
- Affidavits (written statements) sworn and signed by people who can confirm the marriage is real.
Once you have completed Form I-130 and gathered all your documents, the Green Card application process will vary depending on whether or not your spouse is inside the U.S.
Same-Sex Spouse Inside the U.S.
If your spouse is in the U.S., you will file Form I-130 on your spouse’s behalf and your spouse will file Form I-485, Adjustment of Status, at the same time. Green Card petitions based on marriage require an interview at a USCIS office in the U.S.
The questions at the interview will center around your marriage, your friendships together, and your day-to-day activities.
If your spouse has been living in the U.S. unlawfully (without authorization), then you will still file Form I-130 on your spouse’s behalf but your spouse will have to leave the U.S. and apply for a Green Card at a U.S. embassy or consulate. The online Immigrant Visa Application is Form DS-230. Your spouse will have to attend a Green Card interview at the consulate. Your spouse will need a valid passport from his or her home country to be able to travel back to the U.S. If the interview goes well and his or her visa application is accepted, your spouse will receive an immigrant visa and, once inside the U.S., a Green Card.
If your spouse is subject to unlawful presence bars, your spouse may be eligible to file a provisional waiver, Form I-601A, before leaving the U.S. This will enable your spouse to lawfully return to the U.S. without having to wait until the unlawful presence bar is up.
Same-Sex Spouse Outside the U.S.
If your spouse is outside the U.S., you will file Form I-130 on your spouse’s behalf and a U.S. consulate outside the U.S. will let your spouse know when to apply for the Green Card and attend the interview at the consulate. Your spouse will need a valid passport from his or her home country to be able to travel to the U.S.
Same-Sex Green Card Approval
Once the Green Card is approved, the USCIS will mail the Green Card to you and your spouse’s U.S. residence.
If you and your spouse have been married less than two years, your spouse’s Green Card status will be considered “conditional.” You and your spouse must apply with the USCIS to remove the conditional status 90 days before the conditional Green Card expires. If the conditions of your spouse’s Green Card are successfully removed, he or she will be issued a ten-year Green Card.