Issues Facing Same-Sex Immigrant Couples in America

Immigrants confront a broad range of issues when moving to and integrating into U.S. culture and life. However, same-sex immigrant couples face even more obstacles on their journey to the United States. To start, same-sex immigrant couples are recognized as validly married by the federal government following the U.S. v. Windsor decision. Under Windsor, the Defense of Marriage Act was struck down to the extent that it limited marriage to being between a man and a woman.Despite broad range of issues in US culture, same-sex immigrant couples face even more obstacles on their journey to the United States.

Same-Sex Immigrant Couples

Benefits Apply to Same-Sex Couples

Federal benefits apply universally to all 50 states. A pair of Supreme Court decisions: United States v. Windsor and Obergefell v. Hodges require the federal government and all 50 states to provide benefits to same-sex couples to the same extent afforded heterosexual couples. Prior to the Windsor decision, the federal government provided benefits based on where the marriage took place. If it took place in a state that recognized same-sex marriage, then federal benefits were available – if it did not, then the benefits weren’t. However, some agencies considered the domicile (where they lived) in providing benefits.

Federal Benefits

Same-sex couples receive the same Social Security benefits as heterosexual couples. For example, the surviving spouse may receive death benefits if their spouse passes and disability benefits. Moreover, some benefits are available to unmarried same-sex couples, such as civil unions and domestic partnerships.

Federal tax benefits are also identical. A same-sex marriage lawyer can create life estate trusts, family partnerships, and secure other federal estate planning benefits for their same-sex clients. Same-sex couples may also access veterans’ benefits, including education assistance, loans, and health benefits. Burial benefits are also available to any committed relationship – not just married couples.

Immigration Benefits

Same-sex couples may also petition for family-based or fiancé(e) visas. A family immigration attorney may petition for a family visa under Form I-130 and fiancé(e) visas under Form I-129F. Moreover, the same-sex couple may also reside in a country that doesn’t recognize same-sex marriage, and so long as they were married in a country or U.S. state that does (which is all 50), then their marriage is valid for immigration purposes.

Moreover, the treatment of same-sex immigrant couples applies equally to all programs. For example, programs that allow spouses to accompany their partner through a visa program apply to same-sex couples such as, spouse accompaniment for work visas, asylum, and refugee applicants, and non-immigrant visa programs. In all cases, same-sex couples are treated the same as heterosexual couples. The application of parentage and familial relations to children and parents is also the same. The children of same-sex couples are treated the same as children of opposite-sex couples.

Residency Requirements

Typically, naturalization requires five (5) years of residence in the U.S. follow lawful admission as a permanent resident. However, this period can be reduced to three (3) years if the couple lived together in a marital union. Same-sex couples may utilize this reduced review period to the same extent as opposite-sex couples.

Inadmissibility Waivers

Under specific programs, inadmissibility is waivable if the individual is a spouse or family member of a U.S. citizen or lawful permanent resident. These inadmissibility waivers apply to same-sex couples to the same extent as opposite-sex couples.

Last Updated on May 15, 2023

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