Can I sponsor my same-sex partner for a green card?

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Question:

I am a gay male U.S. citizen. My partner is a male citizen of Pakistan, here on a student visa. He is smart, and people have said they would hire him if only he had a green card. If we get married, can he get a green card?

Answer:

The answer to this question was once a categorical "no," as historically, the U.S. Congress, as well as U.S. Citizenship and Immigration Services (USCIS) insisted that heterosexual marriages were the only ones that counted for immigration purposes.

However, the U.S. Supreme Court's recent decision in United States v. Windsor to overturn a provision in the Defense of Marriage Act ("DOMA") means that the same-sex foreign spouses of U.S. citizens and permanent residents are now eligible to apply for green cards.

Because immigration law is federal and DOMA defined marriage as between a man and a woman, this law ensured that only heterosexual partners could petition for a green card for their foreign spouses. As a result, even if you were married in one of the 13 states, the District of Columbia, or the more than a dozen countries that recognize same-sex marriage, you could not sponsor your foreign spouse for a green card or bring your foreign fiancé to the U.S. for purposes of getting married.

That will all change now, thanks to the Windsor ruling. Janet Napolitano, Secretary of Homeland Security, has stated that U.S. Citizenship and Immigration Services (USCIS) will now treat same-sex married couples equally when administering U.S. immigration law.  In fact, just two days after the Supreme Court's ruling, one same-sex couple was notified that their green card application (which they had submitted before the ruling, in February), had been approved by USCIS. (Also see the New York Times writeup of their case.)

While USCIS has yet to issue guidance on how exactly it will implement the new directive, it will likely do so in July or August of 2013. What is clear is that any same-sex marriage that was officially recognized in a state or country permitting it will now count for immigration purposes. This will be true even if you now live (or plan to live) in a state that does not recognize same-sex marriage.

Less clear is whether civil unions or domestic partnerships – even if they technically confer the same benefits that a "marriage" does under the law – will count. Most likely not, so same-sex couples in these unions will probably need to get "married" before they petition for a green card unless they want to instead apply for a K-1 fiancé visa in order to get married in the United States.

Stay tuned for more information as it becomes available. In the meantime, you may want to read Nolo's article, "Sponsoring a Fiancé or Spouse for a Visa or Green Card," for the basics of the application process.

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