In this week's Consulta Migratoria® column I answer the question of a reader who wishes to immigrate to the United States through her future husband who is gay.
Each case is different and the answers vary depending on the immigration history of each person. Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.
I am gay and entered the United States on a tourist visa. I came to visit my boyfriend, who is a U.S. citizen. During my stay in the country, my boyfriend proposed to me and we decided to get married. My future husband intends to initiate proceedings for me to obtain permanent residency in the United States. My legal stay has not yet expired. I want to know if my future husband can petition for me without me having to leave the United States. -Frank L.
Congratulations on your engagement. You may be able to obtain permanent residency by marrying your fiancé if you meet the proper requirements.
In June 2013, the U.S. Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. Section 3 of DOMA was a federal law that only recognized marriages between people of different sexes.
Because immigration law is federal, DOMA prevented gay and lesbian couples who were legally married from applying for permanent residency (to obtain a green card) through marriage.
Given the Supreme Court's ruling, the U.S. Citizenship and Immigration Services (USCIS) now allows U.S. citizens and permanent residents to file applications for permanent residency for same-sex spouses.
In order to be requested by your future spouse, you must demonstrate several requirements, including:
That they are married and that the marriage took place in a country or state that recognizes same-sex marriages.
2. That your spouse is a U.S. citizen.
3. That the marriage is real and not made solely for the purpose of obtaining permanent residence.
Since you entered the U.S. legally and your future spouse is a U.S. citizen, you may be able to apply for permanent residence within the U.S. You will need to file an alien relative petition and an adjustment of status application simultaneously as part of the process. You will need to file a petition for an alien relative and an application for adjustment of status simultaneously as part of the process.
At the same time, you may also be able to file applications for a work permit and an advance parole. The latter would allow you to travel to your home country while your adjustment of status application is being processed by USCIS.
I recommend that you consult with an immigration attorney to carefully evaluate your immigration case and determine if you are eligible to apply for permanent residency through your future spouse.
For more information and immigration tips, read my blog inmigracionhoy.com.
Send your questions to preguntas@consultamigratoria.com. Include detailed information about your situation to better answer your questions.
Nelson A. Castillo, Esq. is an immigration attorney and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States). He is a past president of the Hispanic National Bar Association and current president of the Los Angeles Westlake South Neighborhood Council. To contact Mr. Castillo's office, please call (213) 537-VISA (8472).
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