by Andre Olivie -
Special to the SGN
Last week's Supreme Court ruling in U.S. v. Windsor has paved the way for a major change in U.S. immigration policy. For the first time in the nation's history, following the ruling, the Obama administration is allowing U.S. citizens to sponsor their same-sex spouses for lawful permanent residence. Prior to the ruling, many same-sex binational couples were forced to either live thousands of miles apart in their respective countries, bounce back and forth on temporary work and student visas, or live in the U.S. without lawful status, in the shadows.
The fall of DOMA has opened the door for many of these couples to be reunited and seek a permanent home in the U.S. with their spouses. Nevertheless, same-sex binational couples will soon find out that an open door does not lead directly to a green card. The U.S. immigration laws are extremely complex, and navigating these laws can be daunting even after DOMA. Couples will need to choose between adjustment of status, fiancée visas, and marriage visas. Depending on current immigration status, marriage status, location, and other factors, some couples may have multiple options and others may have no options at all and will still need to wait for Congress to pass comprehensive immigration reform.
HOW IT WORKS
For foreigners currently in the U.S., same-sex marriage to a U.S. citizen may be the quickest way to a green card through a process called adjustment of status. Post-DOMA, the U.S. government will now treat Gay couples the same as it has straight couples in the adjustment process. It begins with U.S. Citizenship and Immigration Service (USCIS) form I-130 (Petition for Alien Relative). The petition is necessary to establish the relationship between the U.S. citizen and the relative - in this case, the foreign national spouse. In addition to form I-130, the U.S. citizen and foreign national spouse must each complete form G-325A, which provides general biographical information. The foreign spouse will also need to file form I-485 (Application for Adjustment of Status to That of a Lawful Permanent Resident), I-765 (Application for Employment Authorization), and I-693 (Report of Medical Examination and Vaccination Record), which can be obtained from a USCIS-approved civil surgeon. The fact that one is HIV+ is no longer a barrier to obtaining a green card.
Immigration law requires that the U.S. citizen-petitioner prove that the marriage was valid at the time it was performed. Prior to last week's SCOTUS decision, USCIS, a federal agency, was unable to recognize a same-sex marriage as 'valid' because of DOMA. Without a valid marriage, no petition could be approved. Now, a Washington state marriage certificate should be sufficient. A foreign certificate in a nation that allows same-sex marriage, such as Canada or Spain, will also be considered valid.
EVIDENCE, INCOME NEEDED
The law also requires that the marital relationship be bona fide (that is, actual and legitimate), and that it was not entered into solely for procuring an immigration benefit. U.S. immigration laws contain safeguards to prevent marriage fraud. The mere existence of a marriage certificate is not enough to establish a bona fide marital relationship. A strong filing will also include items like signed affidavits from friends and relatives attesting to the authenticity of the relationship, love letters, holiday cards, and photos. In cases where the foreign national is already in the United States, it may be expected that the couple live together. USCIS will expect to see comingling of funds through joint bank accounts, joint tax filings (post-DOMA), joint utility bills, and joint leases or mortgages.
In addition to a valid and bona fide marriage, the U.S. citizen spouse will need to be able to financially support their foreign spouse so that they will not become a public charge. Evidence of one's income is provided through Form I-864 (Affidavit of Support). The required income levels are based on the current federal poverty guidelines and in general, spouses must meet 125% of the poverty guidelines for their household size. For example a household of two people will require that the U.S. citizen spouse make approximately $20,000 per year. If necessary, a joint sponsor can be included, or the income of a household member or even the foreign spouse, as long as they are working lawfully in the U.S.
Upon receipt of these documents, USCIS will issue a receipt notice, followed by an ACS appointment notice, in order to collect biometrics for the foreign national. The biometrics, which consist of a photograph and fingerprints, will be used to conduct a background check on the foreign national before any work authorization or adjustment of status can be granted.
The final step of the marriage-based adjustment of status application is the adjustment of status interview. At this interview a USCIS Officer will interview the couple, go over any questions or concerns regarding the application packet, and determine whether or not the couple's marriage is bona fide. If the officer believes that the foreign national is admissible and that the marriage is bona fide, the officer may grant the adjustment of status and a green card will be mailed within a few weeks. It may be necessary for USCIS officers to receive some training on same-sex couples, but it is unclear if and when that will happen. In Seattle, the entire process currently takes four to six months.
If the couple has been married for less than two years, the Lawful Permanent Resident Card will be a two-year conditional card. The foreign national must again prove that the marriage was bona fide after two years by filing form I-751 with proof that the marriage was bona fide within 90 days of the card's expiration. If the couple has been married for more than two years prior to the adjustment of status, the foreign national will be issued a Lawful Permanent Resident Card without conditions. The card itself will need to be renewed every 10 years, but the foreign national will be eligible to apply for U.S. citizenship in three years if they remain married and in five years if they do not.
EVERY CASE IS UNIQUE
Immigration law is complicated. The above description of the adjustment of status process assumes factors that may not apply to every couple. Previous violations of immigration law may prevent a spouse from being eligible to adjust - this includes entering illegally, marriage fraud, and even entering on a tourist visa with clear intent to immigrate. It is important to speak with an immigration attorney prior to seeking any immigration benefit, to help avoid forfeiture of government fees or even deportation proceedings.
For the majority of same-sex binational couples, this change in policy is a huge triumph. Only a few decades ago, Gays were barred from immigrating to the U.S., as homosexuality was seen as a harmful medical condition. HIV was also an inadmissibility factor until 2009. The ability to sponsor one's loved one for a green card is priceless, as it may be the only way for two people to be together. A few have already seen the benefits since last week, but thousands more will see it in the next several months.
The above information is general in nature and does not constitute specific legal advice. Speak with an attorney about the details of your case before filing anything with the U.S. Citizenship and Immigration Services, as not all marriage adjustment cases are the same.
Andre Olivie is the attorney/owner of the Law Office of Andre Olivie, PLLC, an immigration law firm in Capitol Hill, Seattle, which primarily handles LGBT immigration and asylum law.
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