Monday, June 2, 2014 marked the first day that all same-sex couples across the state of Illinois could get married, opening the door to thousands of benefits for same sex couples including insurance benefits, survivor benefits, and next-of-kin rights. This change opens up a wide range of immigration benefits as well. A U.S. citizen or green card holder who is in a same-sex marriage to a foreign national can now file an immigration petition for their spouse, a privilege that so far has only been extended to same-sex married couples and not those in a civil union.
On June 26, 2013, the Supreme Court of the U.S. struck down the Defense of Marriage Act (DOMA). This was important because immigration law is federal, while marriage is considered to be state law. Therefore, even though same sex marriage became legal in states like Iowa and Massachusetts, DOMA’s existence meant that those same same-sex marriages were not recognized federally, including for immigration purposes. After DOMA was struck down, all couples that married in states that recognized same-sex marriages were eligible to apply for immigration benefits. Now that Illinois has joined this group of states, couples who wed here are eligible for immigration benefits.
With the end of DOMA, LGBT immigrant families will be treated the same under immigration law as heterosexual immigrant families. Immigration law is complicated and there will still be barriers for some couples, but the systemic discrimination that prevented some families from receiving the same benefits under the law as others has ended. Green card applications will no longer be denied solely because a couple is lesbian or gay.
I-130 Petition for Relative
If you are a US Citizen (USC) or Legal Permanent Resident (LPR or green card holder, you can now sponsor your spouse for a family-based immigrant visa. If your spouse is undocumented, but entered legally, or following inspection, then you may be able to apply for your spouse. If your spouse entered without inspection (EWI), your spouse must return home before re-entering. However, there is now a waiver available that can minimize the length of time or uncertainty of the wait. Immigration law is complicated, and issues like criminal history or unlawful presence in the country may complicate individual cases.
Same sex U.S. citizen spouses qualify as immediate relatives
In order to prove hardship in order to waive unlawful presence, or extreme and unusual hardship for a cancellation of removal, one is allowed to show much one’s deportation would negatively affect one’s family. Now that same-sex marriages are allowed in Illinois, an immigrant can prove how deportation or separation would create hardship towards their same-sex U.S. citizen spouse, who was previously not a qualifying relative. If the two have children, then for the purpose of cancellation of removal, the immigrant can use evidence of the hardship borne by those children by one parent leaving to strengthen their cancellation of removal case.
I-129F Fiancé Visa
If you are a U.S. citizen engaged to a foreign national of the same sex, you can now apply for a fiancé visa to allow for your fiancé to enter the country in order for your marriage.
Derivative visas (J-1, H1-B, etc)
The same-sex spouse of any visa applicant who comes to the U.S. for any purpose, including work or study –will be eligible for a derivative visa.
Impact on the trans community
A marriage where one of the spouses is transgender will be recognized by the U.S. Citizenship and Immigration Services for immigration purposes if the marriage is recognized as a valid same-sex or opposite-sex marriage by the state where the marriage took place.
The attorneys at ShillerPreyar are sensitive to the needs of the LGBTQ immigrant community, and our office includes attorneys active in the LGBTQ community. We follow changes in the laws and news relating to the LGBTQ and/or immigrant communities. Immigration attorneys at ShillerPreyar are experienced at family-based immigration petitions and are currently assisting two same sex couples in their family immigration cases. If you or a friend or family member has questions relating to the new same sex marriage law and immigration status, feel free to give us a call at 312-225-4590, or schedule an intake.