Thanks to the Supreme Court decision in U.S. v. Windsor, which ended DOMA, gay and lesbian immigrants in New York and around the country can apply for green cards through their U.S. citizen or green-card holding spouses. Here are the answers to some common questions regarding the immigration process.
1. Question: My partner and I are planning on get married, but he is currently outside of the U.S. Can I file a petition for him before he comes to the U.S.?
Answer: Yes, but you would be filing a fiance visa petition rather than a marriage petition unless you will be visiting your partner to register your marriage first. U.S. immigration law allows you to file a petition for a fiancé and the legal requirements are that you have met in person within the last 2 years, that you intend to marry within 90 days of your fiancé entering the U.S., and that your fiancé then file a green card application in the U.S. For couples who have a significant amount of evidence of their relationship already, a fiancé petition can be a good solution. For other couples who have relatively little documentary evidence, it often makes more sense for the marriage to be registered as the additional trip to see each other in person can serve as additional evidence if it is well documented.
2. Question: My partner entered the U.S. illegally many years ago by using a fake passport and has never been arrested by the immigration officials. Can I submit a marriage petition for my partner after we get married?
Answer: The answer is yes, but because your partner may have committed fraud, the Immigration Service could deny the green card application. An immigrant who committed fraud has a couple of problems. If the immigrant was never arrested, there may not be any evidence that he or she was inspected at the border, and those who simply cross over the border without inspection, such as the majority of illegal Mexican immigrants, are not eligible to apply for green cards in the U.S. (although there is a special process called the stateside waiver that may allow them to get green cards depending on the specific facts of the case). If your partner can prove inspection at the border, perhaps by submitting the fake passport to the Immigration Service, then he or she will still need what is called a “waiver” which would forgive the fraud if you can prove extreme hardship to you, the U.S. citizen spouse, if your partner is deported. The law has established a high legal standard for fraud waivers, and winning such cases if often possible, but the process is much more difficult than in a standard case in which the immigrant entered the country legally.
3. Question: Are marriage or fiancé petitions ever denied by the Immigration Service?
Answer: Unfortunately, the answer is yes, and I have seen many cases denied for a large variety of different reasons. Depending on the specific facts of the case, and depending on which immigration officer you happen to get at your interview, you may have a difficult time getting your case approved, especially if you do not have much documentary evidence. Factors that can cause a case to be denied include, living in separate residences (even if the separation is work related), having little or no documentary evidence, mistakes on immigration forms, and especially, making mistakes at your interview. The immigration officers regularly see fake marriages as immigrants attempt to get green cards when they are not qualified, and for this reason, many officers are extremely skeptical and are looking for any reason to deny a marriage petition.
Most officers are fair, but occasionally, I see cases where the immigration officer clearly intended to continue asking questions until the couple slipped up and provided conflicting testimony which can happen even to real married couples. For this reason, I always prepare my clients very carefully for their interviews, asking them many questions that immigration officers frequently ask in marriage interviews. It is important to do a mock interview like this in order to ensure consistent answers, especially when a couple has been together for any length of time as memories tend to fade quickly and sometimes, it is more difficult than you might expect to recall details when faced with the pressure of an interviewer intent on finding some inconsistency in an official interview.