Immigration after Obergefell: What Same-Sex Couples Need to Know

 Posted on August 19, 2015 in Immigration

On June 26, the landmark case of Obergefell v. Hodges was decided by the Supreme Court, granting marriage equality to homosexual couples. Among the many rights granted by a legal marriage, one of the most important is the ability to sponsor one’s spouse for immigration to the United States. This ruling will lead to an easier path for same-sex couples to obtain the appropriate legal documentation for immigration.

Getting a Fiance or Spouse Visa

The usual way to obtain a visa for one’s fiance is to apply for a K visa for them. A K visa is granted to couples who have not yet married, but intend to marry within 90 days of the foreign national’s arriving in the United States. Both halves of a couple must also be able to prove that they are free to marry (with no living spouses, or other potential issues) and that they have met in person (unless to do so would violate long-held cultural norms, such as in certain sects of Islam or Hinduism).

If a couple is already married, a U.S. citizen spouse may sponsor the other for permanent residence. Filing an I-130, Petition for Alien Relative, begins the process, coupled with an Application for Adjustment of Status if your spouse is already in the United States. This process can take months, and generally culminates in an investigation of your marriage to ensure its veracity.

Same-sex couples who had been legally married outside the United States, or could prove their plans to marry upon arrival, have been able to apply to bring each other into the United States since the ruling in U.S. v. Windsor (2013), but still faced a horde of difficulties in having their marriage recognized for non-immigration purposes by both state and federal authorities. A common example often seen was a K-1 visa holder and his or her fiance(e) having to prove not only that he or she intended to marry, but that he or she intended to marry in a state where such a union would be legal. Requiring the wedding to take place in a specific handful of states added an undue hardship—for some couples, a cost-prohibitive hardship—to the issue.

Other LPR Benefits

Another major way that Obergefell will positively affect immigrants attempting to obtain legal status is in dealing with waivers of inadmissibility. Depending on the type of case, some waivers are more likely to be granted if the person applying has a ‘qualifying relative’ (a spouse counts) in the U.S. who would be subjected to hardship of varying degrees if the foreign national was deported.

Lawful permanent residents also have access to a specific form of cancellation of removal, which is a discretionary measure granted by immigration judges to people who have maintained a continuous physical presence in the U.S. for 10 years or more, while having ‘good moral character.’ If you are not a lawful permanent resident (“LPR” or green card holder), you do not have access to this form of removal, and if you do not have access to this form of removal, it is much more difficult to win a reprieve from deportation.

Contact an Experienced Attorney

While the Obergefell decision simplifies the process significantly for same-sex couples wanting to immigrate to the United States, it can still be quite an ordeal to comply with all requirements. Having a competent immigration attorney can help immeasurably. The passionate Chicagoland immigration lawyers at Mevorah & Giglio Law Offices are well versed in this type of law, and will work hard to ensure that your family stays together, as it should. Contact our office to discuss your options.