Though there are many pathways to become a legal permanent resident in the United States, one common pathway to becoming a green card holder is through the filing of an I-130 Petition for an Alien Relative with United States Citizenship and Immigration Service (USCIS). If one spouse is a US citizen or green card holder, they can use this petition to obtain a green card for their spouse. However, if the marriage was performed abroad, it must have been performed in a place where the marriage was legally valid.
In a marriage-based immigration petition, a US citizen or green-card holder spouse is referred to as the “petitioner,” and the person seeking to obtain lawful status in the United States is called the “beneficiary.”
Many LGBTQ+ couples have questions about navigating the marriage-based immigration system and are concerned that their marriages may be treated differently in US immigration law. While the letter of the law is that applications from LGBTQ+ couples must be treated the same as any other application, there are some potential obstacles that are more likely to affect LGBTQ+ married couples who are navigating the marriage-based green card process.
One of the major challenges that any couple seeking a marriage-based green card has is establishing that the marriage is bona fide– essentially, demonstrating to the US government that the marriage is a real marriage in good faith and that the marriage was not for the sole purpose of obtaining immigration benefits for the beneficiary spouse. There are a variety of ways to show this to USCIS, including providing letters of support from family and friends, records of vacations or other recreation activities that the couple enjoys together, and pictures of the couple together in a variety of settings. USCIS also evaluates applications to see if it appears that the couple has an intent to establish a life together, and may look to factors such as combined finances, joint ownership of property or joint legal obligations (such as being on a lease), or joint bills.
Common Challenges for LGBTQ+ Couples
LGBTQ+ couples may have more difficulty than other couples in building up this paper record for several reasons, but two situations are very common for LGBTQ+ clients.
- Lack of Relationship with Petitioning Spouse’s Family: As discussed above, one of the ways that couples can demonstrate a bona fide marriage is by providing letters of support from family members and photographs of the couple at family events. Following the submission of the completed I-130, couples will also be scheduled for a green card interview. It is very common during this interview for the USCIS or consular officer to ask the beneficiary spouse about their spouse’s family. However, these questions can be challenging for some couples in the LGBTQ+ community who have family members that do not support them or their marriage.
- Lack of Joint Documents: One way that USCIS frequently assesses if a marriage is bona fide is by assessing if spouses live together. Commonly, this can be shown through a joint lease. However, in many areas that lack legal housing and workplace protections for LGBTQ+ couples, spouses may opt not to appear on a lease together or to list each other as partners on employment documents. These couples sometimes have to get a bit more creative in showing the government that they have joint legal and financial responsibly and that they live together. This can be done through joint utility bills, copies of ID such as drivers’ licenses that show the same address, joint bank account statements, or any other document that shows joint financial responsibility.
The Bottom Line
LGBTQ+ couples have the ability to petition for marriage-based green cards for their spouses, but may encounter additional challenges in demonstrating to USCIS that their marriage is legitimate. In the event that you and your spouse are struggling to provide some of the commonly submitted documents to support your marriage-based immigration petition, it is best to explain this to the USCIS or consular officer. It is much better to explain at a green card interview that your spouse’s family is homophobic or transphobic than to attempt to create a relationship that doesn’t exist. It’s better to inform the officer that you feared discrimination by a landlord when asked why both names don’t appear on the lease than to try to dodge the question. As with many things, honesty is always the best policy.