New York Family Law Attorneys

Same-Sex Marriage and Family Immigration

   By MandelLawFirm

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  •    MandelLawFirm
  •   Family Law

While same-sex married couples have only recently gained equal rights and recognition under U.S. law, LGBTQ+ couples may still wonder whether this extends to family immigration rights. Federal immigration law has long provided avenues for non-citizen spouses and certain members of their families to emigrate to and reside in the U.S. Same-sex couples should know that all the same immigration rights that have applied to opposite-sex married couples also now apply to same-sex couples.

Immigration for Married Couples

Recent U.S. Supreme Court cases have opened doors to allow non-citizen partners in a same-sex couple to move to the U.S. In 2013, the Court issued its ruling in U.S. v. Windsor, which struck down as unconstitutional the federal Defense of Marriage Act of 1996, which defined marriage for federal law purposes as solely between a man and a woman. Following Windsor, same-sex couples who lawfully married in a state in the U.S. that recognized marriage for same-sex couples could access all federal benefits. In 2015, the Court issued the landmark ruling of Obergefell v. Hodges, ruling that marriage was a fundamental right and that the 14th Amendment protected the rights of all couples to marry, making same-sex marriage legal in all U.S. states and territories.

Non-citizen partners in same-sex couples may be entitled to a K-1 visa, which is granted to foreign nationals to allow them to enter the U.S. for the purpose of marrying a U.S. citizen. Prior to Obergefell, same-sex couples were required to prove that their marriage would take place in a state that recognized marriages of same-sex couples, although no such showing is now required. That’s because now, all states and territories in the U.S recognize the marriages of same-sex couples.

If a same-sex couple is already married, the U.S. citizen spouse can petition to have a green card issued to their spouse. The U.S. citizen spouse may also choose to bring their spouse to the U.S. more quickly by applying for a K-3. However, couples will need to show that their marriage took place in a jurisdiction that has legalized same-sex marriage before USCIS will issue a green card or a visa to the non-citizen spouse.

 Immigration for Family Members of LGBTQ+ Couples

Same-sex couples may also be able to obtain immigration to the U.S. for certain foreign national family members. For example, a couple can also petition for the foreign national spouse’s child to emigrate to the U.S. under a K-4 visa, so long as the couple’s marriage took place before such child turned 18.

If a foreign national spouse later obtains U.S. citizenship, they, in turn, can petition for permanent residence for certain family members, including children who are unmarried and under the age of 21, or who are married and/or 21 or older, as well as parents and siblings of a petitioning spouse who is 21 or older.

 How We Can Help

When you have questions about your family immigration rights when you are in a same-sex marriage, turn to The Mandel Law Firm for help. An attorney from our firm can:

  • Advise you of your legal options for your fiancé/spouse or their family members to enter the U.S.
  • Prepare and file application paperwork on your family’s behalf
  • Represent your family before USCIS and DHS and any other involved federal and state agencies
  • Assist your spouse and their family members with additional immigration applications, such as for permanent residency or U.S. citizenship

If you are looking to help your spouse or their family members move to the U.S., contact The Mandel Law Firm today at (646) 770-3868. You’ll get a no-obligation consultation with a New York family law attorney. Our firm can help you better understand your legal rights under family immigration laws.