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Helping Same-Sex Married Couples Obtain the Necessary Immigration Visas

Same-sex married couples are eligible for derivative visas in light of the Supreme Court’s ruling in U.S. v. Windsor striking down the Defense of Marriage Act in June 2013. The Chicago family-based immigration lawyers at the Shapiro Law Group focus on helping families, including same-sex married couples, stay together by securing the appropriate immigration documents, including visas and green cards.

If you are in a binational same-sex marriage, contact us at (847)564-0712 to speak with an experienced and qualified Illinois immigration attorney.

K Visa for Same-Sex Husband or Wife

To be eligible to sponsor your same-sex spouse for lawful permanent residence you must meet the following criteria:

  • Be a United States citizen or a lawful permanent resident of the United States who can provide documentation proving your status to begin the sponsorship process for Lawful Permanent Residence (Green Card) on behalf of your same sex relative by filing the I-130, Petition for Alien Relative.
  • Prove you can support your foreign national same-sex spouse by providing documentation that your income is 125% above the mandated poverty line for your family, including the beneficiary and all other sponsored family members.
  • Legally prove that the same sex foreign national is your legal spouse. In order to be eligible for a derivative visa based on same-sex marriage, the marriage must be valid in the jurisdiction where it took place, regardless of whether the couple currently resides in that state. Since Illinois legalized same-sex marriage in November 2013, same-sex married couples who will be married in Illinois or who have been married in other jurisdiction that recognizes same-sex marriage are eligible for family-based visas.

If you and your spouse were married in a U.S. state or a foreign country that recognizes same-sex marriage, but you live in a state that does not, the USCIS makes clear that you can still file for a same-sex marriage visa. As the USCIS states in its FAQs, “a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes.  Just as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage.  The domicile state’s laws and policies on same-sex marriages will not bear on whether USCIS will recognize a marriage as valid.”

K Visa for Same-Sex Fiancés

Same-sex fiancés may file a Form I-129F to apply for a fiancé(e) (K) visa.  If the following requirements are met, a same-sex engagement may allow the foreign national fiancé to enter the United States for the purpose of marriage:

  • the fiancé of the K-1 applicant is a U.S. citizen;
  • the couple previously met within the two (2) years of the date of filing the petition (unless a waiver is granted);
  • the couple has a bona fide intention to marry;
  • and the couple is legally able and actually willing to conclude a valid marriage in the United States within 90 days after the foreign fiancée’s or fiancé’s arrival in the country.

The Chicago same-sex marriage immigration lawyers at the Shapiro Law Group help engaged couples with all documentation, including proving to the USCIS that the impending marriage is not a fraudulent means to gain U.S. entry by a non-citizen. Upon approval, the couple can file a green card (permanent residency) application on behalf of the fiancée or fiancé. If the couple does not marry within ninety days, the K-1 fiancée/fiancé and any K-2 dependents will be required to depart the U.S.

Same-Sex Marriage Based Visa
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K-3 Visa for Spouse and K-4 for children of Spouse

Any U.S. citizen who has legally married outside the United States or who have been previously legally married within the United States can file a K-3 spouse visa to bring their new same-sex spouse lawfully into this country if the foreign national is a legal spouse of a U.S. citizen and a petition for an immigrant relative has been filed by the U.S. citizen. Your same-sex spouse will enter the U.S. to await the approval of the petition and subsequent lawful permanent resident status.

The marriage is determined to be valid by the USCIS and a spouse visa is granted, the spouse is automatically eligible for application for Permanent Resident status. The children of your same-sex spouse eligible for a K-3 visa are eligible for a K-4 visa if they are unmarried and under 21 years of age.

K-3 and K-4 visa holders can enter the U.S. and file for adjustment of status after being admitted. While the green card petition is pending, the K-3 visa and K-4 visa holders may remain in the U.S., as well as apply for employment authorization until becoming permanent residents.

After three years of marriage, your foreign national same-sex spouse can apply for U.S. citizenship. If your same-sex spouse or fiancé is already in the United States, the Chicago family immigration lawyers at the Shapiro Law Group can assist in filing a green card application for permanent residence with the appropriate USCIS office.

Get the Legal Help You Need

The Chicago family immigration attorneys at the Shapiro Law Group stand ready to serve those in need of immigration assistance, particularly those same-sex couples who need help with immigration benefits related to their marriage status. Please contact us at (847) 564-0712 to speak with an experienced and qualified Illinois immigration attorney.

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