Chicago Immigration Lawyers

The Chicago same-sex marriage immigration lawyers at the Shapiro Law Group focus on helping same sex couples and families stay together by securing the appropriate immigration documents, including visas and green cards. If you are in a same-sex marriage with a foreign national, contact us at (847)564-0712 to speak with an experienced and qualified Illinois immigration attorney.

The following are answers to some frequently asked questions regarding immigration rights for same-sex married couples:

How did the Supreme Court’s decision in Windsor v. United States impact immigration rights?

In Windsor, the Supreme Court has found section 3 of the Defense of Marriage Act (DOMA) unconstitutional. As a result of the Supreme Court’s decision, same-sex marriage applications must be adjudicated by U.S. Citizenship and Immigration Services (USCIS) in the same way as the service processes opposite-sex spouse immigrant visa applications.

Are civil unions or domestic partners treated in the same way as same-sex marriages?

At this time, only relationships that are legally considered to be a marriage in the jurisdiction where the marriage ceremony took place grants marriage-based immigration rights.

Can a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national sponsor his or her spouse for a family-based immigrant visa?

Yes, a U.S. citizen or foreign national can file a Form I-130 (and any applicable accompanying application) to petition for a family-based immigrant visa for his or her spouse.  The petition will be evaluated according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of the marriage.

What legal options are available for a U.S. citizen engaged to be married to a same-sex foreign national of the same sex if the couple cannot marry in the foreign national’s country?

A U.S. citizen engaged to a same-sex foreign national can file a Form I-129F and apply for a fiancé(e) (K) visa.  As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for the purpose of marriage.

My spouse and I were married in a U.S. state that recognizes same-sex marriage (such as Iowa), but we live in a state that does not.  Can I file an immigrant visa petition for my spouse?

Yes, same-sex married couples can still file a petition for a spouse visa regardless of whether the couple lives in a state that recognizes same-sex marriage. The USCIS looks to the law of the place where the marriage took place when determining its validity for immigration law purposes, though some exceptions to this general rule apply. The Chicago immigration lawyers at the Shapiro Law Group can help you determine if one of the limited exceptions applies to your petition.

Can same sex couples apply for visas in the same classification?

Yes, same-sex spouses and their children are equally eligible for non-immigrant derivative visas.  Same-sex spouses and their children (stepchildren of the primary applicant when the marriage takes place before the child turns 18) can qualify as derivatives where the law permits issuance of the visa to a spouse or stepchild.  In cases where additional documentation has always been required of a spouse applying with a principal applicant, such documentation will also be required in the case of a same-sex spouse. The Chicago immigration lawyers at the Shapiro Law Group can help you gather and submit the necessary supporting documentation.

Can the children of a foreign national same-sex spouse be included with the spouse’s case?

Yes, the children of foreign national same-sex spouses can be considered “step-children” of the U.S. citizens and can therefore benefit from a petition filed on their behalf in the IR2 category.  In other categories, stepchildren acquired through same-sex marriage can qualify as beneficiaries (F2A) or for derivative status (F3, F4, E1-E4, or DV) provided that the same-sex couple was married before the child(ren) turned 18.

Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization?

Yes, naturalization generally requires five years of residence in the United States following admission as a lawful permanent resident, but, the residence period is reduced to three years, if during that three-year period, the applicant has been living in “marital union” with a U.S. citizen spouse. These residency reductions apply to same-sex marriages in the same way as opposite-sex marriages.

Are inadmissibility waivers available for same-sex spouses?

Yes, same-sex marriages qualify for inadmissibility waivers under the same conditions as opposite-sex marriages.

What should I do if I am married or engaged to a foreign national of the same sex?

You should contact a same-sex marriage immigration professional as soon as possible. The Chicago family immigration attorneys at the Shapiro Law Group are dedicated to helping clients with a wide variety of immigration needs, including same-sex married couples in need of immigration assistance. Please contact us at (847)564-0712 to speak with an experienced and qualified Illinois immigration attorney.

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