Supreme court rules #MarriageEquality
On June 26, 2015 in the Obergefell v. Hodges case the U.S. Supreme Court ruled that the Constitution guarantees a right to same-sex-marriage opening the door to same sex marriages in all 50 states of the United States. This ruling added to the repeal of Defense of Marriage Act (DOMA) allows a path for immigration based on same-sex-marriages in all 50 states.
Repeal of DOMA and Federal Restrictions on Same-sex Marriage
In 1996 the Federal Government enacted the Defense of Marriage Act (DOMA), defining marriage explicitly as a union of one man and one woman.On June 26, 2013 in a 5 to 4 decision, the Supreme Court of the United States ruled that DOMA is unconstitutional based on the equal protection clause of the 5th Amendment. DOMA's definition of marriage has been the main barrier to receiving immigration benefits for same-sex spouses even in a state that legalized same sex marriage. Since DOMA's enactment in 1996, same-sex spouses of US citizens and US permanent residents could not receive immigration benefits due to DOMA's restrictive marriage language.Now, with the Supreme Court decision to repeal DOMA, the path for immigration based on same-sex marriage has been opened.
Effects of the Decision
Same-sex spouses are now given the opportunity for marriage based immigration benefits.Some cases that were previously denied and placed in removal because of DOMA's restrictive language are now being recognized as valid marriages under immigration law.
The Decision's Relation to Current State Marriage Laws
There are currently 17 States (California, Connecticut, Delaware, Hawaii, Illinois (starting June 2014), Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, and Washington), in addition to the District of Columbia, that have legalized same-sex marriages. Oklahoma and Utah are awaiting appellate court decisions after lower courts ruled in favor of allowing marriage licenses.There are an additional 4 States (Colorado, Nevada, Oregon, and Wisconsin) that have created legal unions for same-sex couples that offer varying rights and responsibilities of marriage under the law of those jurisdictions.However, these unions are not currently recognized for purposes of immigration benefits.While DOMA has been struck down by the Supreme Court, the federal requirement of legal marriage recognized by the state or foreign country for immigration purposes still exists. This means that only same-sex couples that are married in states or foreign countries that have legalized same-sex marriages will be able to take advantage of immigration benefits.However, even if the spouses currently live in a state that does not permit or recognize such marriages, as long as they were married in a state or country that did recognize the marriage and it was in good faith they have the opportunity to gain immigration benefits.
Conclusion and Steps to getting a green card through a U.S. Citizen Spouse
The benefits that the Supreme Court's decision is having on countless same-sex couples currently residing in the United States and abroad are numerous, finally same-sex couples are able to adjust status or come to the United States based on their marriage to a US citizen or permanent resident. We look forward to helping all married couples that desire to make the United States their home get through the immigration process.
STEP 1 - APPLYING FOR A GREEN CARD THROUGH A U.S. CITIZEN SPOUSE?
There are two ways of obtaining a green card through a U.S. citizen spouse; if the immigrant spouse is in the United States they use Form I-485 adjustment of status or if the immigrant spouse is abroad they must go through Consular Processing and use form DS-230 (or DS-260 electronically).Below we will first talk about applying for a green card in the United States and then Consular Processing.
United States Petition & Applications - I-130, I-864, I-485, G-325A, I-693 and I-765, I-131
When the immigrant spouse is in the United States the main forms used to apply for a green card through a U.S. citizen spouse are the following: I-130 petition for alien relative, the I-864 affidavit of support, the I-485 application to adjust status, the G-325A biographical information and the I-693 medical exam (in a sealed envelope from a qualified doctor called a Civil Surgeon).Additional forms include, the I-765 application for employment authorization and the I-131 application for advanced parole/travel permission.
I-130 Petition for Alien Relative - The United States citizen spouse files the form I-130 petition for alien relative with the U.S. Citizenship and Immigration Services (USCIS) to establish the immediate relative relationship to the immigrant spouse who wants to immigrate to the United Sates.
In order to prove that the petitioner is a U.S. citizen, one of the following documents should be included with the I-130:
1) U.S. Birth Certificate
2) U.S. Passport
3) U.S. Certificate of Naturalization
4) U.S. Report of Birth Abroad
I-864 Affidavit of Support - The form I-864 affidavit of support is required by the U.S. Citizen spouse (called the "sponsor") to prove that the immigrant spouse will have the financial support so as not to be a public charge.The sponsor must demonstrate income that meets the poverty guideline threshold of at least 125% for the household size.The household size includes the immigrant they are sponsoring and other immigrants they have sponsored in the past and all dependants of the sponsor.The guidelines can be found on form I-864P.If the sponsor does not make enough income a co-sponsor may be used.In some cases the sponsor's assets can be counted using a formula of five times the deficit of the annual income and the immigrant spouse's income may also be used if the couple has been living together for at least six months.
The sponsors must submit the following proof with their I-864 affidavit of support:
YES - while the immigrant spouse is not in lawful status she/he is still eligible to adjust because he is applying as an immediate relative.
2) A foreign national crosses the border without inspection and stays in the U.S. for 1 year and marries a U.S. citizen. The immigrant spouse wants to apply for a green card based on that relationship.Is the foreign spouse eligible to apply for I-485 adjustment of status?
NO - there is no exception to the bar to adjustment of status for someone who entered the U.S. without inspection.If the foreign national wants to apply for a green card she/he must apply for an I-601 extreme hardship waiver.
Another criterion the immigrant spouse must meet in order to qualify for adjustment of status is proof of a bona fide marriage relationship.Some evidence that shows the couple is married and living together include the following:
1) Marriage certificate,
2) Birth certificates and or adoption certificate of any children of the couple,
3) Joint residential lease or home ownership,
4) Joint bank account statements,
5) Joint utility bills,
6) Joint insurance policies,
7) Joint memberships,
8) Joint credit cards,
9) Joint vacation itinerary,
10) Other joint assets,
11) Photos of the couple with friends, family, and places.
Please note not all the above document are required but may help prove the relationship.We urge you to consult with a qualified immigration attorney before submitting an adjustment of status application and discussing the best strategies on presenting evidence to the immigration services.
G-325A Biographic Information - The form G-325A is a biographic information document used to collect important information of the U.S. citizen and immigrant spouse.The history and current information required includes all names used, dates and places of birth, residences, marriages/divorces, employment and parent's information.
I-693 Medical Exam - Form I-693 is the medical examination report of the immigrant spouse that is completed by a designated civil surgeon.The purpose of the examination is to establish that the foreign spouse is not inadmissible to the United States on public health grounds.The medical exam is conducted by a civil surgeon which is a doctor authorized by the immigration services.The results of the medical exam must remain sealed when submitting them to the immigration services and the exam results remain valid for 12 months.
I-765 Application for Employment Authorization - Form I-765 is used to apply for permission to work while the green card case is pending.If the application is approved the immigrant spouse will receive an Employment Authorization Card.This card is generally valid for any employment position including self-employment for one year.The card is usually issued within 90 days of filing (advanced parole is issued on same card).
The following is some of the evidence submitted with form I-765
1) A copy of the immigrant spouse's passport and
2) A copy of the immigrant spouse's current and/or past Visa and entry record
Social Security Card and State Identification - With this Employment Authorization Card, a passport and a marriage certificate the immigrant spouse can go to a local social security office and request a social security card.The social security card takes about 2-4 weeks to arrive in the mail.With the social security card, employment authorization card, passport, marriage certificate and proof of address the immigrant spouse may go to the Department of Motor Vehicles (DMV) and apply for a State ID or Drivers License.
I-131 - Application for Advanced Parole - Form I-131 is used for travel permission while the green card case is pending.If approved the immigrant spouse may receive multiple advanced parole documents that may be used for entry back into the United States.Recently immigration services have sometimes added the advanced parole to the Employment Authorization Card instead of a separate document but not always.The advanced parole is usually issued within 90 days of filing (advanced parole is issued on same card).
Please note if the immigrant spouse is out of status/has unlawful presence speak to a qualified immigration attorney before your travel even with an approved advance parole.We urge you to consult with a qualified immigration attorney before travelling outside the U.S. and/or applying for advance parole, to determine your eligibility.
The following is some of the evidence submitted with form I-131
1) A copy of the immigrant spouse's passport and
2) A copy of the immigrant spouse's current and/or past Visa and entry record
STEP 2 - WHAT TO EXPECT ONCE EVERYTHING IS SUBMITTED?
After all the forms and evidence are submitted along with six passport pictures of the immigrant spouse and four passport pictures of the U.S. citizen spouse along with the correct filing fees, receipt notices will be mailed in about 2-4 weeks.Shortly after the receipt notices arrive, the biometrics appointment notice should arrive.The biometrics appointment is for the immigrant spouse to go to get digital fingerprints, photographs and a signature taken at a local immigration services office or application support center.
As mentioned above the Employment Authorization and Advanced Parole usually arrive within 90 days of submitting the case.
The next step is waiting for the green card interview notice to arrive from the immigration services.The processing time to get the green card interview does change depending on the back log of the immigration services office but usually it is within one year of submitting the case and could be as fast as 2 months from submitting the case.Both the U.S. citizen and immigrant spouse must attend the green card interview (Please see my article on what happens at the green card interview and how to prepare at www.StatsuImmigration.com or contact me for a Free consultation at 212-804-5770).
STEP 3 - THE GREEN CARD INTERVIEW
The purpose of the green card interview is to (a) confirm that the marriage is real, (b) that the immigrant spouse entered legally, (c) that there is no past criminal or immigration bars and (d) that the sponsor/co-sponsor are eligible.The green card interview notice will list what to bring to the interview.
During the interview the immigration officer asks questions about the details of the relationship and also requests evidence of the relationship and sponsor's eligibility.Such evidence could include the following:
1) An album of the couple's pictures together,
2) A lease or mortgage of the joint residence,
3) Joint bank and credit card statements,
4) Other joint assets together,
5) Joint utility and other bills,
6) Joint insurance benefits,
7) Any other proof of the couple's relationship and living arrangements,
8) The sponsor/co-sponsors latest federal income tax return and most recent pay-checks and/or pay-stubs and/or pay-statement.
For more information on the green card interview (Please see my article on What happens at the green card interview and how to prepare at www.StatusImmigration.com or contact me for a Free consultation at 212-804-5770).
In some cases the immigration officer may separate the couple to determine if there are any discrepancies between the couple's answers or may request that the couple come in for second interview and ask them questions separately then.This second interview is also called a Stokes or fraud interview because the officer is determining if the marriage is fraudulent and because the guidelines of this interview stem from the Stokes case.For more information on the second interview (Please see my article on What to expect at a Second interview and how to prepare at www.StatusImmigration.com or contact me for a free consultation at 212-804-5770).
At the end of the interview the immigration officer will let the couple now if there is anything missing.If there is something missing the couple will be issued a letter informing them what to bring and when to bring it or mail it by, usually within a specific time frame.If there is nothing missing the immigration officer will review the case and send the decision in about a month.If the case is approved the permanent residence card/green card will be issued shortly after the approval notice.If the marriage is less than 2 years at the time of approval, the foreign spouse will receive a conditional permanent resident card/green card.The conditional green card will expire in two years and the foreign spouse must submit within 90 days of the expiration a petition to remove conditions on residence using form I-751.For more information on removing conditions on residence (Please see my article on How to remove conditions on permanent residence at www.StatusImmigration.com or contact me for a Free consultation at 212-804-5770).
PETITION AND APPLICATIONS FOR SPOUSE LIVING ABROAD - U.S. CONSULAR PROCESSING
If the immigrant spouse is not in the United States, the U.S. citizen spouse must first file the I-130 petition for alien relative at the national benefits center or if the U.S. citizen spouse is also living abroad they would file the petition at the U.S. consulate.Once the I-130 petition is approved, an Immigrant Visa (IV) Application processing fee and the Affidavit of Support (AOS) fee is generated from the National Visa Center (NVC).
When these fees are paid the NVC will generate cover sheets for each and specific information and documentation is required to proof the relationship, background and sponsors eligibility.This proof must be submitted to the NVC at an address designated on the cover sheet along with Form I-864 Affidavit of Support and Form DS-230 (or DS-260 electronic).
The NVC will schedule the immigrant visa appointment interview at the U.S. consulate for the immigrant spouse at their home country.Prior to the immigration appointment, the immigrant spouse must request a police record to be sent directly to the U.S. consulate at their home country and must get a medical examination by a doctor designated by the U.S. consulate of their home country.
Once the case is approved an immigrant visa for admission to the United States as a permanent resident is issued and the immigrant spouse receive a package to bring with them to the United States.The immigrant spouse usually has six months to enter the United States and the customs officers the package at the port of entry.A stamp is placed in the passport as evidence of permanent residence status until the permanent resident card/green card arrives in the mail.The green card usually arrives in the mail about a month later.
ABOUT THE AUTHOR ATTORNEY SHACHAR SHAWN MALACHOVSKY
Shachar Shawn Malachovsky is an attorney licensed in the State of New York and has over 12 years of Immigration Law Experience.Shachar earned a Juris Doctorate Degree from the City University of New York School of Law in 2001 and originally founded Malachovsky Law Offices P.C. in 2004.Shachar is a member of the American Immigration Lawyers Association (AILA), Community Legal Resource Network (CLRN), General Counsel of the Chabad Israeli Center of Staten Island (CIC) and a Delegate and Chairman of The Grant Writing Committee for the Council of Jewish Organizations of Staten Island (COJO).RECENT HONORS & AWARDS: 1) Chabad Israeli Center's 2013 Honoree for Service to the Community, 2) Recipient of U.S. Congressional Special Recognition Award for Outstanding and Invaluable Service to the Community in 2013, 3) Selected by Super Lawyers Magazine as a New York - Metro Rising Star Attorney for 2013 and published for that list in the New York Times Magazine in October 2013.You can reach Shachar Shawn Malachovsky for a Free consultation at 212-804-5770 or visit our website at www.StatusImmigration.com.
Please Notice: We Urge You To Consult With Attorney Shachar Shawn Malachovsky Or Another Qualified Immigration Attorney Before You Begin The Immigration Process Or Petition Or Apply For Any The Forms Discussed In This Article.This Article Is Designed For General Information Only. The Information You Obtain From This Article Is Not, Nor Is It Intended To Be, Legal Advice And It Should Not Be Construed As A Formation Of A Client-Attorney Relationship. Resulting Phone Conversations Or Email Replies Do Not Constitute Or Form A Client-Attorney Relationship Or Legal Representation, Which Can Only Occur After The Execution Of A Formal Client-Attorney Agreement. You May Contact Our Office For A Free Consultation At 212-804-5770 Or Visit us at www.StatusImmigration.com.