The answer is yes. As long as you are a U.S. citizen or a permanent resident you can petition for your same-sex partner to obtain permanent residence in the U.S. Once your same-sex partner is a permanent resident through marriage, they can file for naturalization to become a U.S. citizen within three years of being a green-card holder.
In her statement on July 1, 2013, then-acting Secretary of Homeland Security Janet Napolitano stated in relevant part:
“President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”
In essence, USCIS is supposed to treat same-sex green-card through marriage applications identically to opposite-sex marriage cases. This 2013 directive has not changed as of the date of writing of this article.
If you are a US citizen or permanent resident in a same-sex marriage to a foreign national, you can sponsor your spouse for a green card by filing a petition for an immigrant visa. This will allow your spouse to come to the US as a permanent resident and eventually apply for citizenship.
Can I sponsor my foreign national spouse for a green card through marriage if we are in a same-sex marriage and I am a US citizen or permanent resident?
Yes, you can sponsor your spouse for a green card by filing a petition for an immigrant visa. Your eligibility to petition for your spouse and your spouse’s admissibility will be determined based on applicable immigration laws, regardless of the fact that your marriage is same-sex.
If my spouse and I were married in a state or country that recognizes same-sex marriage, but we currently live in a place that does not, can I still sponsor my spouse for a green card?
Yes, you can still sponsor your spouse for a green card. The validity of your marriage for immigration purposes is determined by the law of the place where the marriage was celebrated, not the state where you currently reside. As long as your marriage is legally recognized in the place where it was celebrated, it will be recognized by US Citizenship and Immigration Services (USCIS) for the purpose of sponsoring your spouse for a green card.
My spouse and I live outside the U.S. in a country or state that does not recognize same-sex marriage, can I still sponsor my spouse for a green card?
Yes, you can still sponsor your spouse for a green card even if you live in a place that does not recognize same-sex marriage. The fact that your place of residence does not recognize same-sex marriage does not affect your eligibility to sponsor your spouse for a green card. As long as your marriage is legally recognized in the place where it was celebrated, it will be recognized by US Citizenship and Immigration Services (USCIS) for the purpose of sponsoring your spouse for a green card. You can file a petition for an immigrant visa for your spouse, and if the petition is approved, your spouse will be able to come to the US as a permanent resident and eventually apply for citizenship, if they choose to do so.
How do I file for a green card for my same-sex spouse?
To file for a green card for your same-sex spouse, you will need to file a petition for an immigrant visa. This is done using Form I-130, Petition for Alien Relative. You will need to provide proof of your relationship to your spouse, such as a marriage certificate, proof of your U.S. citizenship or permanent residence, and additional evidence.
You will also need to pay the required filing fees. Once the petition is approved, your spouse will be able to apply for a green card through consular processing or adjustment of status, depending on your spouse’s current location.
If your spouse is currently in the US, they may be able to apply for a green card through adjustment of status, while if they are outside the US, they will need to apply through a process known as consular processing.
How difficult is it to apply for a green card for my same-sex spouse?
Each case is different. The difficulty will vary based on the individual backgrounds of applicants and evidence of relationship available at the time of filing. The documents that you submit and how well you fill out the immigration forms play a significant role in how difficult the process will be when applying for a green card for your same-sex spouse.
It is important to carefully gather all of the required documents and to make sure that they are complete and accurate. In certain cases where there are grounds for inadmissibility, there may be an opportunity to apply for a waiver of inadmissibility and still bring your spouse to the U.S.
If your spouse is currently in the U.S. they may be able to apply for a green card through adjustment of status. The process of adjustment of status allows them to apply for a green card without leaving the U.S. This process is generally quicker and more convenient than consular processing, which requires your spouse to apply for a green card through a US embassy or consulate in their home country.
Can I bring my same-sex partner to the U.S. without getting married?
There are several options that you may be able to use to bring your same-sex partner to the U.S. without getting married.
One option is to have your partner apply for a nonimmigrant visa, such as a visitor visa (B-1/B-2) or a student visa (F-1), which would allow your partner to come to the US for a temporary stay. However, these visas are temporary and do not allow your partner to work or live permanently in the U.S.
A popular option is to apply for a fiancé visa, also known as a K-1 visa. This type of visa allows your partner to come to the U.S. in order to get married within 90 days of their arrival. This allows you to bring your same-sex partner to the U.S. first, and get married shortly after.
Once you are married, your partner can then apply for a green card through the adjustment of status process. However, you will need to demonstrate to U.S. government that you have a genuine intention to marry among other requirements.
There are also some other options, such as the E-2 Treaty Investors visa, or EB-1 extraordinary ability visa or the EB-2 National Interest Waiver, and a few others. These visa options may be available to your partner if they have exceptional abilities, funds to invest in the U.S. economy or other visa-specific qualifications.
It is important to note that these options are generally not available to individuals who are seeking to come to the US solely for the purpose of living with their partner without getting married. If you are looking for a way to bring your partner to the U.S. to live with you permanently, getting married may be the most straightforward option. However, all options should be considered before making an impactful decision for you and your partner.
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Remember that each case is different. Prior results do not guarantee a similar outcome. Read the full disclaimer here.