After the Defense of Marriage Act was declared unconstitutional many same sex couples have moved forward with immigration applications for their loved ones. Many U.S. citizens and lawful permanent residents have petitioned their foreign national same sex spouse in order to adjust their status in the U.S or consular process abroad. However, many same sex couples are not aware that there are a number of immigration benefits and forms of relief beyond marriage based petitions that depend on the existence of a valid marriage from which everyone can avail.

Where you get married matters

As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. That means that if the country or state where the marriage was entered into legally recognizes same sex marriages, then the immigration laws will recognize the same sex marriage for all applicable immigration applications.

What relief do you have?

For individuals who are in immigration removal proceedings, a number of benefits are now available to same-sex couples who have entered into a valid marriage. All immigration relief which is dependent on the existence of a valid marriage will now be available to same sex spouses conditional on statutory eligibility. For instance, cancellation of removal is an affirmative form of relief available only in removal proceedings before an Immigration Judge where eligibility depends on the existence of a qualifying relative (LPR or USC spouse, parent or child), ten years of continuous physical presence and good moral character. Individuals with same sex spouses would now have their partner be the qualifying relative for the application. Individuals who are in removal proceedings before the immigration court should apply for relief in the regular course of proceedings. If the case is on appeal at the Board of Immigration Appeals, the individual should file a motion to remand based on changed circumstances to the immigration court for a hearing on the application.


Other applications that depend on the availability of a qualifying relative are waivers. To qualify for a waiver of unlawful presence, the applicant must demonstrate extreme hardship to his U.S citizen spouse or parent. Hardship for lesbian and gay married couples may include evidence of age, family ties in the U.S, length of time spent in the U.S, medical conditions, economic and financial conditions among other factors. However, hardship may be also be supported by evidence of your country human rights practices with the gay, lesbian, bi-sexual and transgender community. To have a successful waiver based on a same sex partner as a qualifying relative depends on careful document collection and thoughtful research. A waiver application should be handled by an experienced practitioner.

Fiancés can also qualify

Same sex couples not always need to have entered into a legally binding marriage to apply for benefits based on a same-sex union. For example, if the noncitizen is outside the U.S, a U.S citizen may petition for a K-1 fiancé visa for his or her partner. The visa is only available to individuals who are coming to the U.S solely to conclude a valid marriage with the petitioner within ninety days after admission. The petitioner and beneficiary must be able to show that they intend to marry in a state that recognizes same-sex marriage. Applying for a fiancé visa is particularly beneficial to foreign nationals who reside in countries where same-sex marriages are outlawed and where the country’s laws strictly criminalize same sex behavior that could endanger the life of your same sex partner. In circumstances where your life might be in danger in the country from which you would apply for a same sex immigration benefit such as a fiancé visa, it is important to seek a professional attorney to determine whether a third country processing is necessary or even possible.

Same sex spouses who are considering immigration applications for their partners should be aware that submitting an immigration application based on same-sex marriage will differ greatly from that of opposite sex couples. There are different factors and dynamics involved in same sex marriages that requires careful consideration and analysis. It is recommended that couples interested in pursuing such benefits consult a professional at LA Legal Advocates in the matter.

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