With the recent changes in Federal law, same-sex couples who are legally married in a state that allows same sex marriages, an american national can now apply for permanent residency for their foreign national spouse.
These changes resulted this past June, when The Defense of Marriage Act was ruled unconstitutional by the United States Supreme Court. As a result the following directive was issued:
Statement from Secretary of Homeland Security Janet Napolitano on July 1, 2013:
“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”
The significance of this language is that same-sex couples can now apply for the same immigration benefits as any heterosexual couple. This includes petitions for permanent residency for same sex couples that are legally married in any of the states that allow same sex marriages even if it is not the same state of residency as the applicants. It even includes petitioning for a Fiance visa for same sex couples, and can include their children.
This change in federal law has now vastly changed the landscape and opportunites for same sex couples, and our office is on the frontline in filing as many of these petitions to begin securing those rights. Please realize these now rules are not an exception, but the norm. Please contact our office for a complimentary phone consultation to discus your case.
Divorce. A sad tale unto itself, but for those petitioners that were granted conditional residency based on their marriage to a US citizen, it can become an even greater nightmare.
A common situation I see is that a petitioner divorces within the two years of becoming a conditional resident. They can no longer rely on their spouse to file the I-751 for them, so can they file it themself?
The answer is yes. The real devil is in the details. The USCIS will raise red flags and will place the self-petitioner under increased scrutiny believing the marriage was not bona fide. How do you handle this matter?
Your best bet is not to try to prepare the petition on your own. An expereinced immigration attorney can help you provide the proper documentation to the USCIS to at least have them schedule you for an interview and not outright deny your petition or send you a laundry list of items in a Request For Evidence that you could not properly answer.
If you do not take the time to properly prepare and present your I-751 petition packet to the USCIS, you may find yourself in Immigration Court having to defend yourself in removal proceedings back to your home country.
After a year of waiting, the USCIS has finally set a start date for applicants who illegally entered the US to apply for unlawful presence waivers based upon their family relationship as the Spouse of a US Citizen , a Parent of a US Citizen (child over the age of 21) and a Minor Child of a US Citizen.
The importance of this new program is that the applicant can remain in the United States and await the ruling on the I-601 waiver which is based upon the grounds of extreme emotional harship to the US relative if they were separated for an extended period of time. Essentailly, illegally entering the US results in a bar to admission. Once granted, the applicant would still have to return to their home country for a visa interview at the embassy, but they would have the approved waiver in hand to allow them to re-enter the US.
It is important to remember there could be other factors that could impact admissibility, such as a criminal conviction, which they waiver would not cover. But if the only issue was the illegal entry into the US, the waiver allows the re-entry into the US where the subsequent petition to adjust to permanent residency can be filed and adjudicated at a local USCIS office.
Any person considering applying for this program should retain an immigration attorney to assist with the preparation of the waiver. Do not attempt to hire a notario or do it yourself. There are specific documents and legal arguments that need to be included in the waiver packet for you to have the greatest chance of success.