by Kasey Husk
Happy Pride Month! This June we take extra time to recognize and honor the countless individuals who have worked to overcome prejudice and even violence to obtain the right to be themselves. Pride Month is so important because it allows us to highlight and celebrate the unique achievements of the LGBT+ community, raise awareness about their issues, and give hope to LGBT+ youth struggling with their sexuality.
At Eagan Immigration, we believe everyone should feel comfortable being themselves, no matter where they are. Many of our clients have come to the United States in part due to the prejudice they experienced in their home countries. While many Latin American nations have made significant progress in enacting laws to protect sexual minorities and legalize same-sex marriage in recent years, the fight is far from over. Mexico, for example, legalized same-sex marriage in 2022, but that year the National Observatory of Hate Crimes Against LGBT+ Persons in Mexico recorded 62 murders and 22 disappearances of members of the LGBT community. Another organization puts the number of hate-motivated murders against members of the LGBT+ community at 87 that year, an 11.5 percent increase from the previous year, and warns that the actual number is likely around 200.
When coming to the United States, many of our LGBT clients find the opportunity to live authentically and, along the way, find someone to love as well. However, figuring out how to adjust their status in the United States after marrying a U.S. citizen or lawful permanent resident (LPR) can be a daunting prospect, especially if their immigration history is a bit more complicated than others. Fortunately, Eagan Immigration is here to help you adjust your status so you can live happily with your partner, in the country where you feel safe. Because love is love.
But first, let's take a quick look at what it has taken to get to where we are today.
A brief history of gay marriage and immigration in the United States
The 1990s and early 2000s saw a battle in the United States, as some states legalized gay marriage or domestic partnerships, while others sought to completely ban such unions by amending their state constitutions. Fueling the fire was the Defense of Marriage Act of 1996 (DOMA), which federally defined marriage as being between a man and a woman. During those times, same-sex couples were largely unable to apply for immigration benefits for their spouse because the federal government did not recognize their union.
Everything changed in late June 2013, when the US Supreme Court declared a large part of DOMA unconstitutional. A few days later, Homeland Security Secretary Janet Napolitano announced: “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.”.
So, I am married to my US citizen or lawful permanent resident. What now?
When the time comes to begin the process of adjusting your status in the United States, your first step should be to find an immigration lawyer you can trust. Immigration law is very complex, and even small decisions you made in the distant past can have a major impact on the type of petition you will need to file to have the best chance of obtaining a green card. Fortunately for you, our highly experienced attorneys at Eagan Immigration are well-versed in these nuances of immigration law. We will help you determine your next step to ensure that you and your spouse can be together for the long term. In general, most of the time you will see one of two situations:
-Adjustment of status. Do you already live legally in the United States or did you enter with a visa or another legal entry permit? So you are already well on your way. Newly married immigrants in this scenario will be able to file an application for adjustment of status while living in the United States, and can attend an interview with USCIS at a location near you. From there, your green card, that is, the proof of your LPR status, will be mailed to your home. Three years later, you will be eligible to apply for citizenship!
-Consular processing. Did you originally enter the United States without inspection, or are you living without status here now? Things are a little more complicated for you, depending on the circumstances of your arrival and your immigration history. In most situations, you will be required to return to your country of origin to have a visa interview at the United States consulate there. However, leaving the United States can trigger a three- or ten-year re-entry ban, or even a permanent ban. At Eagan, however, we are well versed in all available options to minimize time apart for married couples. Depending on your circumstances, we can file a variety of waivers to overcome any bar issues and get you back home to your spouse as soon as possible. Once you have completed this process, you will be granted permission to return to the United States and wait for the arrival of your green card. From there, it is once again three years until you can apply for citizenship!
One thing to remember is that in every case, the process for a same-sex couple will be identical to that of an opposite-sex couple! For many younger people, this may seem like it has always been the case in a world where gay pride parades have become mainstream. However, just 10 years ago, an undocumented immigrant married to a same-sex partner would have had no way to adjust their status in the United States based on their marriage. It is just another reason why it is so important that every June we reflect on how far we have come as a nation, as well as work toward greater progress in the future.
What happens if my partner does not want to help me adjust my status in the United States?
Unfortunately, we know that not all relationships have their fairy-tale endings. In abusive relationships where one partner has status in the United States and the other does not, it can seem like the abuser holds all the cards. Often, they do not want to give up that power. In such cases, a VAWA self-petition can be the key to achieving legal status in the United States.
VAWA stands for the Violence Against Women Act, but this type of petition is not limited to women. Individuals in good-faith marriages, or who divorced less than two years ago and have not remarried, may apply for status in the United States based on their relationship with an abusive lawful permanent resident (LPR) or U.S. citizen spouse. These petitions are not reserved only for individuals who have suffered physical abuse: psychological, verbal, sexual, and financial abuse can qualify immigrants for a VAWA petition. While obtaining final approval of a VAWA application currently takes about 33.5 months, applicants can obtain work permits as soon as six months after application, as well as advance parole, allowing them to temporarily leave the United States and return. After VAWA approval, applicants can generally apply for a green card between 15 months and two years later.
In some cases, victims in abusive relationships might also qualify for a T visa. This type of petition is for victims of trafficking, which can include situations of domestic violence in which an abuser forces their spouse or partner to perform domestic labor for their benefit. It will not fit every case, but as always, an Eagan immigration lawyer can help you understand what your options are.
Call us at 202-709-6439 o click here for a consultation directly with attorney Lauren Eagan.
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