Our Blog

How Immigrants in Same-Sex Marriages Can Adjust Their Status in the United States?

June 26, 2023
  • News

by Kasey Husk

Happy Pride Month! This June we take some extra time to recognize and honor the countless people who’ve worked to overcome prejudice and even violence to gain the right to be their authentic selves. Pride Month is so important because it allows us to highlight and celebrate the unique accomplishments of the LGBT+ community, raise awareness of their issues, and give hopes to LGBT+ youth who are struggling with their sexuality.  

At Eagan Immigration, we believe that everyone should feel comfortable being themselves, no matter where they are. Many of our clients have come to the United States in part because of prejudice they experienced in their home countries. While many Latin American nations have made significant progress in enacting legislation to protect sexual minorities and legalize same-sex marriage over the last several years, the fight is far from over. Mexico, for instance, legalized same-sex marriage in 2022, but that year The National Observatory of Hate Crimes Against LGBT+ Persons in Mexico records 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, a 11.5 percent increase over the previous year, and warns that the true number is likely around 200.  

In coming to the United States, many of our LGTB clients find the opportunity to live authentically and, along the way, find someone to love as well. However, figuring out how to adjust your status in the United States after you marry a U.S. citizen or lawful permanent resident (LPR) can be a daunting prospect, especially if your immigration history is a little 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 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 outright ban such unions by amending their state constitutions. Fueling the fire was the 1996 Defense of Marriage Act (DOMA), which federally defined marriage as being between one man and one woman. During those times, same-sex couples could largely not apply for immigration benefits for their spouse because the federal government did not recognize their union.  

Everything changed in late June 2013, when the U.S. Supreme Court declared much of the DOMA unconstitutional. A few days later, Secretary of Homeland Security 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 U.S. citizen or lawful permanent resident. What next?  

When it is time to start the process of adjusting your status in the United States, your first step should be finding an immigration lawyer you can trust. Immigration law is highly complex, and even small decisions you made in the distant past can have a big impact on what kind of petition you will need to file to have your best chance at gaining a green card. Fortunately for you, our highly experienced lawyers at Eagan Immigration are well-versed in these nuances of immigration law. We’ll help you figure out your next step to make sure you and your spouse can be together for the long-haul. In general, you’ll most often be looking at one of two situations 

Adjustment of Status. Are you living in the United States legally already, or did you enter with a visa or other legal entry permit? Then you are already well on your way. Newlywed immigrants in this scenario will be able to submit an adjustment of status application while living in the United States, and they can attend an interview with USCIS at a location near you. From there, your green card – meaning, proof of your LPR status – will be mailed to your home. Three years later, you’ll 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 trickier 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 U.S. consulate there. However, leaving the United States can trigger a three or 10-year bar from reentry, or even a permanent bar. At Eagan, however, we are well-versed in every option available 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’ve completed this process, you’ll be granted permission to return to the United States and wait on 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 each case, the process for a same-sex couple will be identical to 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 short years ago, an undocumented immigrant married to someone of the same sex would have had no way to adjust their status in the United States on the basis of their marriage. It’s just another reason that it is so important that each June, we reflect on just how far we’ve come as a nation, as well as to work toward further progress in the future.  

What if my partner does not want to help me adjust my status in the United States?  

Unfortunately, we know that not all relationships get their fairy-tale endings. In abusive relationships where one partner has status in the United States and the other does not, it can feel like the abuser holds all the cards. Oftentimes, they do not want to give up that power. In such cases, a VAWA self-petition may be the key to achieve 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 – can 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 for only people who’ve suffered physical abuse – psychological, verbal, sexual and financial abuse can all qualify immigrants for a VAWA petition. While getting final approval of a VAWA application is currently taking about 33.5 months, applicants can get work permits as early as six months after applying, as well as advanced parole, which will allow them to leave the United States temporarily and return. After a VAWA approval, applicants can usually apply for a green card about 15 months to two years later.   

In some cases, victims in abusive relationships could also qualify for a T Visa. This type of petition is for victims of trafficking, which can include domestic violence situations in which an abuser forces their spouse or partner to perform domestic labor for their benefit. It will not fit every case, but as ever, an Eagan immigration attorney can help you understand what your options are.  

Regardless of what route you ultimately take to achieve legal status in the United States, Eagan Immigration is eager to help. Talk to an immigration specialist today at 202-709-6439.