by Jen Green, Burch Law
OK, so the federal government has finally recognized that love is love and a true marriage of souls is valid whatever may be the physical gender(s) of those uniting in matrimony. The U.S. federal government now recognizes the validity of same-sex marriages, even though some of the individual states of the United States do not. Fortunately for those whose marriage partner is of the same gender but of another nation, the marriage-based immigration process is a federal matter.
So, if you are a U.S. citizen, and your true love is from abroad and happens to be of the same gender as yourself (as gender is commonly defined – the full continuum of gender identity being beyond the scope of this particular blog entry), you now have the opportunity to sponsor them for legal permanent residence in the United States! Yes, your partner may now obtain a U.S. green card through marriage. For purposes of this blog, let’s call it the U.S. rainbow card!
The marriage itself is just the first step though in the green card process. If you are a U.S. citizen, a visa is immediately available for your spouse. If you are a U.S. permanent resident and your spouse is from abroad, they fall into the second preference category, and may have a lengthy wait (currently around two years) before a visa becomes available for them.
In either case, there are forms to fill, documents to gather, and a medical exam with a government-approved physician to undergo. If you married and live together in the USA, you may file everything by mail, and simply wait. There will be a biometrics appointment in your local community for photos and fingerprints of your spouse, and an interview at the local USCIS office.
The marriage-based interview can be notoriously difficult. The interview process is designed to weed out fraudulent applications. It isn’t infallible, clearly, but it does have some success here and there. People might fail even with a genuine marriage if they don’t pay attention to their spouse’s habits or preferences (does anyone else know people who don’t pay close attention to their spouse’s habits or preferences?), or if they guess at the answer to a question where they don’t know. There are other challenges if your chosen life mate has criminal convictions or has associations with groups the government is not fond of. Basically, there is a long list of questions about your spouse’s background and activities in the permanent residence application, and even if they choose to answer untruthfully, the truth is out there and may well be found during the background check phase. And falsifying information on an application can make your spouse permanently ineligible for permanent residence.
Alternatively, if you were married abroad, you may have to travel back to the U.S without your spouse and wait for a time until they receive their immigrant visa and can rejoin you in the U.S. You will need to file a marriage-based petition, and they will need to fill out the immigrant visa application and submit it to the U.S. Consulate in their home country (or sometimes in a nearby country, depending on the status of diplomatic relations). When their application is reviewed and approved, they will schedule an interview at the Consulate, take their original biographical documents with them, and with luck, receive their passport back with an immigrant visa stamp allowing them to enter the U.S. as a permanent resident. The actual “green card” or permanent resident card is received in the mail afterwards.
The initial green card received by someone sponsored through marriage is a conditional one however, good for two years only. Slightly before the end of that two years, you will file a petition to remove the conditions on your spouse’s permanent residency. Timing of the filing is critical; if you miss the deadline, you may find your spouse in removal proceedings. An interview at the local USCIS office may be required with this petition also. If all goes well, and the conditions on your spouse’s permanent residence are removed, your spouse receives a non-conditional green card, and is eligible top apply for naturalization as a U.S. citizen in another 3 years. And you could live happily ever after. (Or not. But that’s marriage.)
If you are ready to undertake the well-papered path of the marriage-based green card process, or if you already have and now need to apply for your citizenship, contact us. We can help. We have been down those paths with many people before. Your success is our goal.