Q: The state I live in does not allow same-sex couples to marry. Can I still sponsor my foreign born fiancé?

A:.Yes. US Citizens may sponsor alien fiancés through a K1 visa. The K1 visa only allows a foreign fiancé to come to the US, additional filings are required if the K1 visa holder wishes to become a US permanent resident. See: {Link To: http://www.hooyou.com/k-1/}

Q: My spouse and I are in a Civil Union/Domestic Partnership*. Can I still sponsor my alien spouse for a green card?

A: Unfortunately, no. At this time, the US federal government only recognizes marriages for federal benefits, including immigration. Thus, a domestic partnership nor a civil union will qualify a US citizen or legal permanent resident to sponsor their alien spouses for immigration purposes; even if such a union is recognized as the equivalent of a marriage in any state or country. However, you can marry in a jurisdiction that allows same-sex couples to wed, and then will be eligible to sponsor your spouse. Additionally, the civil union/domestic partnership can serve as evidence that the marriage is a bona fide relationship and was not entered into for the purposes of evading US immigration laws. Similarly, same-sex couples in one of these unions are also eligible to sponsor their spouses as fiancés for a K1 visa; if the alien spouse resides abroad.

Q: My alien spouse/fiancé has children from a prior relationship/marriage. Can I sponsor them along with my spouse/fiancé?

A: Maybe. The ability to sponsor your spouse’s children depends on the benefit sought, the child’s age& marital status, and the age of the child at the time of your marriage. If the children are the biological children of your spouse/fiancé; you may generally file a petition for them as step-children so that they may become permanent residents. However, the marriage must have taken place before the child’s 18th birthday; and the children must be under the age of 21.

Q: I previously filed to petition for my alien spouse/fiancé before the DOMA ruling, and it was denied citing Section 3 of DOMA. What can I do now?

A: USCIS is offering a window of opportunity to reopen and adjudicate these cases in light of the DOMA ruling. Thus, you may be eligible to have your case reopened without the need to file a new petition with a new filing fee. Should you not be able to reopen your case with USCIS, you may still be able to file a new application.

Q: My spouse has been living in the US with me unlawfully for several years since I could not sponsor him/her for adjustment of status. Can I sponsor him/her now for adjustment of status since DOMA has been ruled unconstitutional? 

A: The issues surrounding unlawful presence, entry without inspection, and other admissibility issues can be very complicated. It is best to consult with an attorney regarding the specifics of your and your spouse’s or fiancé’s immigration issues. There are some avenues for relief, such as a provisional unlawful presence waiver; advanced parole for certain immigrants, waivers of inadmissibility, etc. However, these relief measure can be very complicated & difficult to achieve a favorable result. An attorney can provide you with an accurate assessment of your situation and how the immigration process will unfold for your specific case.

Q: My husband immigrated to the US through an employment based preference category, but I did not accompany him to the US. Am I eligible for follow-to-join benefits as a same-sex spouse?

A: Yes, but only if a legal marriage took place before your husband became a US permanent resident. The benefit of following-to-join is that an I-130 (petition for alien relative) is not necessary, saving months or years of waiting for a visa to become available through a family based preferencecategory.

Q: I recently arrived in the US from Russia/Iran/Uganda/Jamaica, and fear returning to my home country due to increasing violence & persecution of lesbian, gay, bisexual, & transgender individuals or against persons with HIV/AIDS. Can I apply for asylum in the US based on my sexual orientation/gender identity or HIV/AIDS?

A: Yes. U.S. immigration law began recognizing persecution of sexual orientation & gender identity as a basis for asylum in 1994, and recognized persons with HIV/AIDS as a social group eligible for asylum in 1996. There are several requirements to apply for & be granted asylum. The asylum seeker must apply for a grant of asylum withinone year of arriving in the US; and provide evidence to either past persecution or have a well-founded fear of future persecution. Evidence can include police reports, personal statements from the asylum seeker or witnesses, or other documents explaining the current human-rights crises in the asylum seeker’s home-country. Asylum is a serious and delicate immigration matter, and asylum seekers are strongly encouraged to consult with an attorney before making any decisions.

Q: My spouse is currently a recipient of deferred action under President Obama’s DACA (Deferred Action for Childhood arrivals) program. Can I sponsor him/her for permanent residency?

A: Maybe. If your spouse initially entered the US on a visa and was inspected at the border, then they received an I-94 Admission Number. If so, then you should be able to file an I-130 on behalf of your spouse, and they may concurrently file form I-485 to apply for adjustment of status; assuming there are no other grounds for inadmissibility. However, if your spouse entered without inspection (EWI) then they do not have an I-94 number, and thus cannot apply to adjust status until other steps are taken. It is best to consult with an attorney to determine the best course of action to rectify your spouse’s immigration situation. Additionally, applying for an adjustment of status when these issues are present without first addressing them may put your spouse at risk for exclusion, detention, and/or deportation.

See Additional FAQ published by USCISHere.

* Civil Unions & Domestic Partnerships are offered in the following US states:
 Oregon, Nevada, Colorado, and Wisconsin.

For more information on sponsoring spouses of U.S. citizens or U.S. Permanent Residents, please click on the following links:

• Same-Sex Marriage & Immigration
• Immigration for Spouses of U.S. Citizens
• Immigration for Spouses of U.S. Permanent Residents
• Frequently Asked Questions regarding Same-Sex Marriages
• The Supreme Court Ruling on DOMA & What it Means for Same-sex Binational Couples