What Is Same Sex Marriage Green Card/U.S. Residency?
This is the process by which U.S. citizens can apply for U.S. residency / U.S. Green Card for their same sex spouse, based upon the Supreme Court decision in Windsor.
The Secretary of Homeland Security, Janet Napolitano, announced that the Department of Homeland Security would allow same sex couples to obtain immigration benefits under immigration law [1]. According to immigration attorney, Desmond P. FitzGerald, Principal of the Boston immigration and criminal defense firm FitzGerald Law Company, this means that family petitions, derivative employment benefits like a visa or a green card, and many other options will now be available to everyone.
Can a U.S. citizen or lawful permanent resident sponsor his or her same sex spouse for a family-based US immigrant visa?
Yes, you can file a family based immigrant petition for your same sex spouse. You may file a Form I-130 [3] (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be denied as a result of the same-sex nature of your marriage.
Do I have to wait until USCIS issues new regulations, guidance or forms to apply for immigration benefits based upon the Supreme Court decision in Windsor?
No. You may apply right away for a family based green card for your sex same spouse.
Can a U.S. citizen who is engaged to be married to a foreign national of the same sex file a fiancé or fiancée petition for him or her?
Yes. Under the U.S. immigration laws, eligibility for a wide range of benefits depends on the meanings of the terms “marriage” or “spouse.” Examples include (but are not limited to) an alien who seeks to qualify as a spouse accompanying or following to join a family-sponsored immigrant, an employment-based immigrant, certain subcategories of nonimmigrants, or an alien who has been granted refugee status or asylum. In all of these cases, a same-sex marriage will be treated exactly the same as an opposite-sex marriage (refer to marriage residency / green card [4]).
In cases where the immigration laws condition the benefit on the existence of a “marriage” or on one’s status as a “spouse,” will same-sex marriages qualify as marriages for purposes of these benefits?
Yes. Under the U.S. immigration laws, eligibility for a wide range of benefits depends on the meanings of the terms “marriage” or “spouse.” Examples include (but are not limited to) an alien who seeks to qualify as a spouse accompanying or following to join a family-sponsored immigrant, an employment-based immigrant, certain subcategories of nonimmigrants, or an alien who has been granted refugee status or asylum. In all of these cases, a same-sex marriage will be treated exactly the same as an opposite-sex marriage.
Residency Requirements: Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization?
Yes. As a general matter, naturalization requires five years of residence in the United States [5] following admission as a lawful permanent resident. But, according to the immigration laws, naturalization is available after a required residence period of three years, if during that three year period you have been living in “marital union” with a U.S. citizen “spouse” and your spouse has been a United States citizen. For this purpose, same-sex marriages will be treated exactly the same as opposite-sex marriages.
Is FitzGerald Law Company offering consultations to those who want to petition for immigration benefits for their same sex spouse?
Yes. Massachusetts was the first state in recognizing the legality of same sex marriage in the the United States in 2004 and the well known Boston immigration law firm [6], FitzGerald Law Company, has already been successful in obtaining green cards for same sex spouses based on their marriage to an US citizen or resident.
If you reside in the state of Massachusetts and would like to obtain information about filing an immigration petition, please call us at (617) 303-2600 to schedule an appointment with one of our experienced Boston immigration lawyers [6]
Read more on the Family Green Card/Residency process [7].
What are the USCIS Filling Fees for a same sex spouse family petition?
You will need to pay the filing fees for forms (I-130), (I-485), (fingerprints), if applicable penalty fee for (I-485A), and (I-765-if work authorization is desired), and visit to verify the fees at the U.S. Immigration Service Website [8] as these change regularly.
What are the Legal Fees to Petition for a Same Sex Marriage Residency?
Where Can I Get More Information?
Bringing Spouses to Live in the United States as Permanent Residents [10]
Same-Sex Marriages [10]
Supreme Court Ruling Makes Same-Sex Marriage [11]