Last Days for FY2015 Diversity Visa Lottery Applications!
The U.S. Department of State (DOS) is still accepting applications for the Fiscal Year 2015 Diversity Visa Lottery Program (DV 2015) until noon EDT on Saturday, November 2, 2013. For FY 2015, one change is that natives of Nigeria are not eligible to apply.
The Diversity Immigrant Visa Program is administered each fiscal year by the DOS. It provides immigrant visas to persons from other countries with historically low rates of immigration to the United States. For FY 2015, 50,000 diversity visas will be available. Entries for the DV 2015 program must be submitted electronically between October 1, 2013 and November 2, 2013. Please visit the DOS website for additional information at http://travel.state.gov/visa/immigrants/type/types_1322.html
The End of DOMA: What Your Family Needs to Know
What did the Supreme Court say about DOMA?
In United States v. Windsor, the U.S. Supreme Court held in June 2013 that Section 3 of the Defense of Marriage Act (“DOMA”) was unconstitutional. Section 3 of DOMA was a federal law that limited federal marriage recognition to different-sex couples. Because immigration law is governed by federal law, DOMA prevented lawfully married lesbian and gay couples from obtaining lawful permanent residence (“green cards”) through marriage. Now that DOMA has been struck down, U.S. citizens and lawful permanent residents can submit green card applications for their same-sex spouses.
Can LGBT couples get green cards now?
With the end of DOMA, LGBT families will be treated the same under immigration law as different-sex immigrant families. Immigration law is complicated and there will still be barriers for some couples, but the systemic discrimination that prevented LGBT families from receiving the same respect under the law as others has ended. Green card applications will no longer be denied solely because a couple is lesbian or gay.
Do we have to live in a marriage equality state to apply for a green card?
No. If you have a marriage that is valid in the state or country where you were married – regardless of where you live – that marriage makes you eligible to apply for a green card.
U.S. Citizenship and Immigration Services (“USCIS”) looks to see whether you entered into a valid marriage in the state or country where you married. This is called a “place of celebration” rule. While some federal benefits may only be available to married couples if you live in a state that recognizes your marriage, fortunately, this is not the case for immigration benefits.
We married in Canada. Do marriages from outside the U.S. count?
Yes. As long as the marriage was validly entered into, it is sufficient for immigration purposes. In fact, Edie Windsor, the plaintiff in the Supreme Court case, married her wife in Canada.
Does a civil union or domestic partnership count?
The answer to this is no. At this point, couples must be legally married to be recognized for immigration purposes.
My partner can’t get a visa to get to the United States, and we can’t marry in his/her country. What are our options?
U.S. citizens can file fiancé/e visa applications for committed partners. This application requires the couple to demonstrate that they have a “bona fide” relationship. When the visa is granted, the couple is required to marry within 90 days of the foreign partner’s entry into the US. Once married, the couple can file the marriage-based green card application from within the United States.
For families that can travel to another country that has marriage equality, another option would be to marry there and then have the U.S. citizen sponsor the foreign national spouse for a green card through consular processing in his/her home country.
We live in exile. How soon can we come home?
For couples in exile together, the U.S. citizen could file for a fiancé/e visa or the couple can marry and the foreign spouse can apply for a green card through consular processing. It will take at least 8-12 months before a visa is actually issued, but processing times vary by consulate. Therefore, we cannot say exactly how long it will take before families are able to return to the United States. Keep in mind that once a foreign national becomes a green card holder, s/he must live primarily in the U.S. If you are not ready to move back to the U.S., it may be too soon to apply.
Once I apply to sponsor my spouse, how long will we have to wait until s/he can work?
For couples who live in the United States together, it is possible to file an application for work authorization along with the application for lawful permanent residence. Processing times vary throughout the U.S., but generally employment authorization documents (EADs) are issued within 90 days, and marriage-based interviews are generally scheduled within 3-6 months after filing in most jurisdictions.
My partner is here on a work visa. Is a marriage-based visa better?
It depends. In general, marriage-based petitions are adjudicated quicker than many other applications for lawful permanent residence. Employment-based petitions are complex, with most categories requiring the employer to prove that there are no U.S. workers able, willing, and qualified to fill the position. There is also an annual cap on the number of employment-based green cards that can be issued, which has created years-long backlogs in several employment-based categories. Since there is no limit to the number of green cards that can be issued to the spouses of U.S. citizens, a marriage-based petition may result in a green card much more quickly. However, in a marriage-based case, the U.S citizen spouse has to file an affidavit of support proving that he or she can maintain the applicant at above 125% of the poverty level. So, in some cases, it may make sense to pursue lawful permanent residence through an employer if that’s an option. Regardless of whether a foreign national obtains a green card through a marriage-based petition or through a different avenue (like an employer), he or she can apply to become a U.S. citizen after three years (rather than five) if married to a U.S. citizen.
I am undocumented, my partner is American. Can we apply?
It depends. Under U.S. immigration law, the general rule is that a person who is in the U.S. without lawful status cannot change from within the U.S. from being here unlawfully to being here lawfully. One significant exception to this rule is that the spouse of a U.S. citizen can apply for a green card from within the U.S. (to “adjust status”) as long as he or she entered the U.S. through a valid port of entry, in other words, following inspection by a U.S. official.
For those undocumented individuals who entered the U.S. without inspection (“EWI”), the applicant must return to his or her home country to apply. In the past, this was unworkable for most families, because once the applicant left the country he or she was barred from returning for many years. There is now a waiver available which can minimize the length and uncertainty of that wait.
We have children. How will this affect them?
Generally, when a U.S. citizen files an application for lawful permanent residence for a spouse, he or she can also file for the spouse’s children as “step-children.” Even if you don’t see your children as “step-children,” if the foreign spouse is the biological parent of the children, filing a step-child petition for lawful permanent residence is an efficient way to obtain their green cards. You and your spouse must have married before the child turned 18, and the child must currently be under 21 and unmarried in order to get a green card at the same time as the parent’s marriage-based green card. Another possibility is for the U.S. citizen to adopt her spouse’s biological children.
What about the immigration reform bill? Do we need to be in it now?
Immigration reform is still important for LGBT people. There are critical protections in the bill for asylum seekers, alternatives to detention for LGBT detainees, and procedural protections for those who are detained, including limiting the use of solitary confinement for LGBT detainees. The bill also provides a pathway to citizenship for those who are in the U.S. without lawful status, at least a quarter-million of whom are LGBT. The bill further provides an accelerated path to citizenship for DREAMers, young people who came to the U.S. as minors, grew up as Americans, and whose movement for change has been led by many brave LGBT people.
Do we need a lawyer? Do we need a lawyer that specializes in LGBT issues?
It’s always a good idea to have legal advice and representation when applying for an immigration benefit and spousal petitions can be very complicated. While many people successfully file marriage-based applications for lawful permanent residence without a lawyer, we generally recommend that people should seek representation by qualified counsel.
What can we do today to start preparing for our application? What kind of things do we need to gather?
It is important that you and your partner be legally married. As with any marriage-based petition for lawful permanent residence, you will need to prove to USCIS that your marriage is “bona fide,” that is that you married for love and not merely to get an immigration benefit. Thus, USCIS will look for proof that your relationship is real, including proof that you: live together; share finances; hold each other out as a couple; spend holidays together, in some cases raise children together, etc. It will be helpful to begin to put this type of evidence together, but you may want to consult with an immigration attorney to determine the best evidence to present in your case.
How can we get legal advice from McCown & Evans?
McCown & Evans is offering complimentary initial consultations to same-sex couples with questions about family-based immigration options. To schedule a consultation, please call (415)834-9123 or send an email to intake@mccownevans.com
Source: Immigration Equality. See more at: http://immigrationequality.org/2013/06/the-end-of-doma-what-your-family-needs-to-know/#sthash.hSlnmBdG.dpuf
Disclaimer
This information is for general use only. You should consult a licensed attorney for legal analysis and advice regarding the specific details of your case