In honor of Pride Month, we will be discussing adjustment of status for spouses of USC LGBTQ individuals. Adjustment of Status allows an individual, which has entered the United States legally and have overstayed their visa, to obtain their legal permanent residence in the United States without having to apply for their visa abroad.
After Obergefell v. Hodges, where the Supreme Court held that the fundamental right to marry is guaranteed to same-sex couples by the constitution, same-sex couples are afforded the same rights and benefits opposite-sex couples have, naturally this includes benefits under immigration law.
If you entered the United States legally and overstayed, in order for you to obtain your adjustment of status the United States Citizen spouse will first have to file an I-130 family petition on your behalf. After your family petition is approved you will be eligible to adjust your status in the United States and obtain your green card without ever leaving the United States.
As a part of your adjustment of status petition, you will have to prove to immigration that your same-sex marriage is bona fide. It is important to consider certain particularities that will probably arise in your petition.
Evidence of your Relationship
You will need to submit documentation that evidences your relationship and depending on the circumstances surrounding your relationship will choose which type of documentation to submit. For example, if your relationship was carried out in secret you may have less documentation to evidence that your same-sex relationship is genuine. Preferably you will submit photos that show you and your spouse as a couple and with friends and family. It is also advisable to submit letters of support from your friends as a couple and the family of the USC spouse that attest to the genuineness of your relationship. Additionally, you should submit any joint bills, accounts, credit card statements, assets, joint insurance benefits, or leases to evidence your bona fide relationship. If you do not have the above-stated evidence it is important that once you get married or have decided to file you start to accrue this documentation to evidence that your marriage is bona fide.
Prior opposite sex marriage
It is also possible that questions as to the validity of your current marriage will arise if you or your spouse were the previously married to a person of the opposite sex. There are many valid reasons as to why you or your spouse were previously married to a person of the opposite sex. You or your spouse could have “come out” later in life, due to the discrimination that many gay individuals faced in the recent past, or you or your spouse may be bisexual. This issue will undoubtedly be scrutinized and is highly recommended that you provide information regarding that prior marriage in the form of an affidavit. Through an affidavit, you will be able to provide a thorough explanation of the circumstances surrounding your prior marriage and the how you came to be married to a person of the same sex.
The goal of providing extensive documentation evidencing that your marriage is bona fide is to answer all the questions an officer may have regarding the particular circumstances surrounding your case. Another important point to highlight is that even though officers handling same the cases of sex couples have been trained to process applying the same standards that they apply to opposite sex marriages it is advisable that you hire an attorney that is versed in the applicable laws and policies to represent you during the filing and subsequent interview..
At Mercedes Cano we are here to help you. To have your case reviewed by our office, please contact us at 718-505-8506 or please fill out our Contact Form.