Immigration Questions for Same Sex Couples

April 5, 2016



Immigration law is a complex and nuanced legal subject. Historically, same sex couples did not and could not obtain the same immigration rights as opposite sex couples. However, following the United States Supreme Court’s decision finding the Federal Defense of Marriage Act to be unconstitutional, President Barack Obama instructed the US Citizenship and Immigration Services (USCIS) to treat same sex couple immigration applications the same as opposite sex couples. Same sex couples will not face discrimination from the immigration officials if they apply to immigrate to the United States.


Eligibility for Same Sex Couples


There are some notable changes in eligibility for spouses. Under current guidelines, not only can opposite sex spouses be eligible to accompany their spouse into the United States in certain situations, but same sex spouses are also able to do so. Important examples include instances in which an alien seeks to qualify as a spouse accompanying a family-sponsored immigrant, a refugee, or an employment-based immigrant. 


Can I File a Fiance Petition?


Under current law, a same sex couple that is engaged but not yet married can file for a fiance petition. However, the couple must be married within a certain period in the U.S. to maintain the rights or the fiance petition will expire. If the same sex couple is engaged in a country in which they cannot be married, they can still apply for a fiance petition with the USCIS. This would allow the non-resident fiance to be admitted into the country for the purposes of being married in the United States. 


Children of Same Sex Immigration Applicants


Children of foreign nationals can be considered stepchildren in same sex spouse immigration applications. The children can benefit from a petition being filed on their behalf. However, the couple must have been married before the child at issue turns 18 in order for the petition for the child to be valid. 


Individuals with children, extended family members, or other special circumstances may wish to consult an attorney in order to make sure that they file the appropriate applications in a timely fashion to ensure that your applications are reviewed in the best light possible. Whether you are applying for residency as an opposite sex couple or same sex couple relationship or another immigration status, you can expect equal and fair treatment by USCIS.



Contact an Experienced Immigration Attorney at JRQ & Associates Now


The immigration system is very complicated if you are not used to dealing with the intricacies of the law. It’s very important to have an experienced immigration attorney assist you through the process in order for you to obtain the best possible result.  Please call 312.561.5063 for a free immigration consultation with one of our experienced immigration attorneys. 



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