Immigration Issues for Same-Sex Couples Post-Defense of Marriage Act

On June 27, 2013, in the case of United States v. Windsor, the US Supreme Court overturned as unconstitutional Section 3 of the Defense of Marriage Act (DOMA). You can follow this link to the text of the decision. Section 3 of DOMA had prohibited the federal government from recognizing or providing any federal benefits, including immigration benefits, to same-sex marriages.

As a result of the Windsor decision, married same-sex couples are now eligible for the same immigration benefits as married opposite-sex couples. These benefits include family-based visa petitions and applications for permanent residence (getting a green card), derivative immigration status for a host of non-immigrant visas and humanitarian-based applications such as asylum, defenses to deportation such as cancellation of removal, and eligibility for waivers of inadmissibility which require a qualifying spouse or other family member.

Many same-sex couples have waited for years for this impediment to immigration equality to be removed. However, one concern is that in the eagerness to immediately file immigrant visa petitions and applications for permanent residence, possible grounds of inadmissibility or other procedural problems may be overlooked. In order to anticipate these potential problems, it is helpful to create broad categories into which most (but not all) of these applications will fit.

1. The Foreign-Born Spouse is in the US Legally or Entered Legally and Overstayed

The first and simplest category is where the foreign-born spouse is either in the US legally, or entered legally on a non-immigrant or temporary visa and then overstayed after the period of admission expired, and is not inadmissible for any reason.

In such a case, the procedure is relatively straightforward: file a petition for alien relative (I-130) and an application for adjustment of status (I-485) along with the applications for employment authorization (I-765), advance parole (I-131) and an affidavit of support (I-864), various biographic information forms, a medical exam and other documents specified in the instructions to the respective applications and petitions.

The purpose of the I-130 relative petition is to establish that the foreign born spouse (referred to as the beneficiary) is the relative of the US citizen (or permanent resident) spouse (referred to as the petitioner). This requires proof that the marriage is genuine and not entered into solely for immigration purposes. The purpose of the I-485 adjustment of status petition is to allow the foreign-born spouse to obtain permanent residence (get a green card, in plain language), and requires proof that he or she is the beneficiary of an approved relative petition and is not inadmissible. It cannot be approved unless and until the I-130 relative petition has been approved, even though they are often filed together and adjudicated in the same interview.

After an interview, the case will either be approved or there will be further investigation, further interview, and/or a request for additional information. If the couple are married for less than two years at the time of the approval, then the foreign-born spouse is granted conditional permanent residence for two years. Ninety days prior to the expiration of that two-year period, the couple jointly files Form I-751 to lift the condition on the permanent residence. If not still married, the foreign-born spouse files the same form, but with a request for a waiver of the joint filing requirement.

A decision denying an I-130 can be appealed to the Board of Immigration Appeals (or simply re-filed, which is usually quicker), but will result in automatic denial of the I-485 as well. It can be re-filed if the I-130 is eventually approved. A decision denying an I-485 cannot be appealed in the same way as an I-130. However, if the person is placed into immigration court proceedings after a denial, the I-485 can be re-filed before the Immigration Judge, and if it is denied in court, that decision can be appealed to the Board of Immigration Appeals. If the person is not placed into immigration court proceeding, the denial of the I-485 can in some circumstances be appealed into federal court.

2. The Foreign-Born Spouse Entered the US on a Visa Waiver

If the foreign-born spouse entered the US on the visa waiver program (as distinct from on a visa) and overstayed after the ninety days of admission, then he or she is not entitled as of right to adjustment of status, even if the I-130 is approved. Instead, ICE can simply deport them, notwithstanding any pending applications, because visa waiver overstays have no right to contest deportation (other than through a claim for asylum). This issue does not affect eligibility for the I-130, only the I-485.

Since 2011, it has been USCIS policy to decide adjustment of status applications on the merits for visa waiver program overstays. A link to USCIS’ statement of this policy is here. Nevertheless, it is still advisable to check the practice in the district in which your case is pending. It is also important to be sure that the case is approvable and that there are no grounds of inadmissibility, because if either the I-130 or the I-485 is denied, the foreign-born spouse is subject to being immediately detained and deported.

3. The Foreign-Born Spouse Entered the US by Crossing the Border

The next category involves those cases where the foreign spouse entered the US without being inspected (i.e., crossed the border). In such a case, he or she is not eligible for adjustment of status in the US. Instead, an I-130 first has to be filed and approved, and then the foreign-born spouse must return to his or her home country and seek permanent residence through the US consulate. This is known as consular processing.

Unfortunately, most people who have entered the US without inspection will also have accumulated at least six months or a year’s unlawful time in the US, making them inadmissible to the US for three or ten years respectively, once they leave. This ground of inadmissibility can be waived, based on a showing of hardship to the US-born spouse, and this particular waiver (unlike others) can be provisionally approved in the US before the person departs the US for the home country, thus minimizing the risk that the person leaves the US with no idea of when or if they will be able to return.

However, even if this particular ground of inadmissibility is provisionally waived before leaving the US, other grounds of inadmissibility may be raised at the consular interview, and may require another waiver to be filed at that point (if that particular ground of inadmissibility can be waived). One of the reasons people generally prefer adjusting status in the US to consular processing overseas is not only because denial of an application by a consular officer is extremely difficult to appeal, but also because if the person is found inadmissible and has to file a waiver of inadmissibility from overseas, he or she must remain outside the US while that waiver is being adjudicated, a process that can drag on for months and sometimes years.

4. The Foreign-Born Spouse has an Outstanding Removal or Deportation Order

The next and most difficult class of cases are those where the foreign-born spouse has an order of deportation, also known as an order of removal. A removal order can be issued either by an immigration judge, or by an immigration officer with DHS.

A person with a removal order can be the beneficiary of an I-130, but cannot adjust status without first getting the order vacated, and runs the risk of being detained and deported if attending an I-130 interview while there is a removal order in effect. However, it is often difficult to get the immigration case reopened and the removal order vacated without first having the I-130 approved. This creates an unfortunate catch-22 situation.

If the removal order was issued by an immigration judge, then the best way to deal with this is to approach the lawyers who represent DHS at the immigration court where it was issued, and ask them to agree to vacate, or lift, it so that the person can attend the I-130 interview and proceed with adjustment of status. If they will not agree, then ask the immigration judge who issued the order to vacate it. Regardless of who is approached, you will have to show that the person is eligible for adjustment of status and is not inadmissible, other than because of the removal order.

Although there is no official policy on this, many districts have an unwritten policy of allowing people with removal orders to attend I-130 interviews without being detained, unless they have criminal convictions or pose a threat to public safety. Again, it is advisable to find out what the practice is in the district where you will be filing a case like this before proceeding.

If the order of removal is vacated and there is an approved I-130, then the person can either adjust status in immigration court, or (more typically) ask the immigration judge to terminate the case so that they can apply to adjust status before USCIS, because that procedure is quicker and cheaper.

Marriages that take place while a person is in immigration court proceedings, or has a removal order, are presumed to be fraudulent, and so the I-130 in such cases must be accompanied by an affidavit from the petitioner – the US-citizen or permanent resident spouse – stating that the marriage is genuine and not entered into for the purposes of immigration benefits.

Whether or not a removal order can be vacated will often depend on the circumstances under which it was issued: if it was after a hearing, and the person simply didn’t leave; if it was issued at a hearing that the person didn’t attend (which is more difficult to vacate); if the person took “voluntary departure” (agreed to leave the US voluntarily instead of having a removal order issued) but didn’t leave, in which case it may turn into a removal order and/or the person will be ineligible to even apply for adjustment of status for up to ten years; or if he or she was physically deported (or left the country under an order of removal or voluntary departure) and then re-entered the country again illegally. Each of these scenarios presents different and often difficult challenges. If the removal order is not vacated, however, the person simply cannot adjust status here, and remains subject to detention and deportation.

Removal orders are issued by immigration officers (ICE or CBP) when they detain people, usually but not always while entering the US. These are known as expedited or summary removal orders, and oftentimes people are not aware that they have been issued. (Typically, the person is detained, fingerprinted and processed, served with the removal order and then physically deported, sometimes within a matter of hours. It is not surprising that many people are confused by what is going on and have no idea what has just happened). Re-entering the US illegally after an expedited removal can lead to significant immigration and criminal penalties. So if the foreign-born spouse has ever been detained by immigration officials, even for a short period, and then deported, there is a significant likelihood that they are subject to an expedited removal order. They should not proceed with any type of immigration application without first obtaining their entire immigration record and seeing an experienced immigration lawyer. It is extremely difficult to get an expedited removal order vacated.

5. The Foreign-Born Spouse or Fiancé is Outside of the US

The final class of case involves those situations where the foreign-born spouse or spouse-to-be is outside of the US.

In cases involving foreign-born spouses, the US spouse first files an I-130 with USCIS in the US or in some cases, directly with USCIS overseas (a link to the Department of State website explaining when this can be done is here. Once the I-130 is approved, notification is sent to the National Visa Center (NVC), which then issues a list of requested documents in order for the immigrant visa application to be completed. Once these documents are submitted, the NVC then sends the case to the consulate or post for an interview. If the case is approved, the foreign-born spouse is given an immigrant visa, which is then presented to a CBP officer at the airport, and (assuming all goes well) the person is admitted as a permanent resident, and gets a green card.

If the foreign-born partner wants to come to the US as the spouse or fiancé of the US citizen, the procedure is a bit different. In that case, the I-130 is filed, and once a receipt is issued, a form I-129F, along with supporting documentation proving that they have a genuine relationship, is filed with USCIS. If the I-129F is approved, notification is sent to the foreign consulate, the foreign-born partner is interviewed, and if approved, issued a K-3 visa (if they are already married) or a K-1 visa (if they are not yet married but plan to do so). The person then enters the US on this K-1 or K-3 visa. In cases involving fiancés, the couple must marry within 90 days of entry, and then the foreign-born spouse applies for adjustment of status, and there is no need to file an I-130. There are strict penalties associated with failing to marry within the designated time.


This article does not describe all of the possible situations that can arise in the course of an application for permanent residence for the spouse of a US citizen. Instead, it is only intended to give a general overview of the steps involved in the most common situations. It is not, and should not be treated as, a substitute for legal advice. Remember that immigration law is extremely procedural, and that the two agencies involved – the Department of Homeland Security and the Department of State – are extremely unforgiving of mistakes. That said, both agencies have tried hard to be helpful, and posted FAQs (Frequently Asked Questions) on same-sex marriage based immigration issues. The link to the DHS FAQs is here, and the link to the Department of State FAQ is here. However, the best way to minimize potential problems is to consult with an immigration lawyer who has experience in your particular type of case.

Contact Us

Fill out the contact form or call us at 646.230.7444.

Send Us a Message