Fairfax Same Sex Spouse Immigration Lawyer

After the appeal of DOMA, same-sex spouses are in the exact same position as heterosexual couples as far as immigration is concerned. The exact same rules apply, the same grounds of inadmissibility apply to that person, and the same requirements to prove a bonafide relationship with an individual’s same-sex spouse are identical as well.

If you are a same-sex couple going through immigration proceedings, it is imperative that you consult with an experienced family immigration lawyer as soon as possible. An attorney will be able to gather all the evidence associated with the claim and efficiently prosecute the case.

A lawful permanent resident spouse can petition for a same-sex spouse as well, they do not have to wait in the National Visa Center line.When they apply for immigrant status, they start as a lawful permanent resident. The common way for a same-sex spouse to obtain lawful status would be to have their US citizen spouse petition for them.

Application of K-1 Visas

K-1 visas are available to fiancés of U.S. citizens or to spouses of U.S. citizens if they want to enter on a K-1 visa and then apply for the adjustment of status application of the United States. That is not often used, and is only used with adjudication type for I-130s within the United States. It is a very long process, so sometimes a Fairfax same-sex spouse immigration attorney can get around a long separation for spouses, but most commonly, K-1 visas are used for fiancés of U.S. citizens.

There can be same-sex fiancés of U.S. citizens because it is legal to marry the same sex in the United States. An individual will need to go through the exact same process as anyone else. The most important thing in K-1 visa applications for fiancés is to prove a bonafide relationship.

Role of USCIS in Family Immigration

USCIS is the United States Citizenship and Immigration Service and that is the entity under the Department of Homeland Security that grants benefits for people. It is the agency that a person applies for if they want to apply for benefits for the spouse, work authorizations, or advanced parole. They grant benefits. They are separate from the immigration court, who can actually also grant lawful status in many cases but the immigration court is charged with determining the inadmissibility of people who are in removal proceedings from deciding whether or not to allow them to stay here or to deport them.

Immigration and Customs Enforcement

Immigration and Customs Enforcement, or ICE,  is the branch that is in charge along with border control with removing people who are here unlawfully. Applicants should consult their Fairfax same-sex spouse immigration attorney who can help them determine if ICE will play a role in their case.

USCIS grants benefits but in some cases they can also refer people, if they believe that a person applied for a status that they are not eligible for or is otherwise inadmissible or unlawfully present in the United States, they can refer their case to the immigration court for a notice to appear to be issued.

Defining DOMA

The Defense of Marriage Act (DOMA) is a law that was passed in 1996. It is a federal law that defines marriages for federal purposes of the union of one man and one woman. It allows the states to basically refuse civil unions and same-sex marriages to allow the states to deny that. Once DOMA was appealed it became a federal law that a person cannot impede on the lawfully created marriage.

Unmarried Couples

If a person is not married, it is a little bit more difficult to go about the immigration process, because often people will have legal documents in the same name or they might have resided together. They may be less likely to have kids, so to establish that their relationship is bonafide, they could show a timeline of their relationship and how they met. A person needs to plan to marry their fiancé within 90 days of entering the United States.

The application process for this is to submit the Form I-29 to USCIS within the United States with significant documentation proving their relationship and the trajectory of their relationship to convince the USCIS that that person plans to marry once they enter. Once entering the United States on the K-1 visa, they will marry and begin adjusting the status process, which includes the Form I-130, the I-485 application with the green card, work authorization, anything that is pro-application, and the affidavit of support just like anybody else.

Filing an Application

All the same rules apply as they do to any other couple, but the most straightforward way is if a person is married to a US citizen, they will file the initial application on Form I-130 and if the spouse is already present in the United States and has entered with inspection, then they can submit the entire green card application in one filing. It will include the I-130, the green card application that is filed on I-485, then they can file for a work authorization, which is filed on Form I-765, and they are allowed to be granted work authorization while the green card application is pending.

In that same package, a person can file for an application for advance parole on Form I-131, which will allow them to travel abroad while the application is pending. They also file the Form I-864, which is the affidavit of support and that is the sponsor question that will prove that the petitioning spouse has the financial means to support the intended immigrant should they need it.

If the intended spouse is abroad but they are otherwise admissible to the United States, and they are married to a US citizen petitioning spouse, they will be eligible to submit the green card. They can also submit the I-130 application with USCIS. When that application is approved they will be eligible to enter the United States as a lawful permanent resident. A Fairfax same-sex spouse immigration attorney can help navigate an individual’s case before beginning either of these processes.

Importance of an Attorney

The immigration process is a complicated one, and for anybody petitioning for a family member, it is recommended that they have a Fairfax same-sex spouse immigration lawyer to go through the process. In some cases, there can be issues specific to same-sex couples, so it would be very advisable to have an experienced attorney.

A number of cases involve an individual who has been in a heterosexual relationship before they came out and then began a same-sex relationship or they are bisexual and they have had different types of relationships. The USCIS should not discriminate based on prior relationships with heterosexual or homosexual relationships. However, the fact is that adjudicators are human and sometimes when an individual has a relationship that is a little bit outside of the boxed normalcy as perceived by USCIS, they can subject them to higher scrutiny.

An experienced Fairfax same-sex spouse immigration attorney can help advocate for these kinds of non-traditional relationships. Sometimes, a person needs someone to advocate that fact for that person, because they may not fit into the specific box that the adjudicator is looking for.

It is a long and complicated process and depending on a person’s situation, it is advisable for anybody to have a Fairfax same-sex spouse immigration lawyer, it just makes the whole application a lot more straightforward. It is not a requirement, but it is important to have the process go as smoothly as possible whether a person’s spouse is here in the United States or is applying from abroad.