Same Sex Marriage Green Card Application Tips

Ever since the overturn of Defense of Marriage Act (DOMA), the USCIS has been granting green cards to spouses of same sex marriages. Before when DOMA was in effect, these green card applications were simply put on hold without anyone looking at it, since it was not possible to issue green cards based on same sex marriages. Now that it is possible, people often wonder would the process and interview be any different from a marriage between a man and a woman. Considering all aspects of the application, gay or straight marriages actually are not handled any differently. However, the USCIS does give some leeway for gay marriages in terms of supporting evidence. So, what do you need to have a successful application? A genuine marriage!

A genuine marriage will produce the necessary evidence to convince the USCIS that the marriage is bona fide legitimate and that it is not a fraudulent way for someone to get a green card. Keeping in line with green card marriage applications between a man and a woman, you still need documents to prove the marriage is real. Besides the obvious marriage certificate, you need to produce documents such as:

  • Joint ownership of bank accounts
  • Joint ownership of financial securities
  • Joint ownership of property, real estate assets
  • Both names on a rental lease
  • Joint insurance policies
  • Joint tax returns
  • Both names on utilities bills, telephone bills
  • Evidence of relationship through photographs
  • Plane tickets, phone call records for long distance relationships
  • Adopted children

The list is not meant to be complete and exhaustive, but you should understand any documents that show that both of you are in a relationship will help your case. Now, the leeway mentioned earlier is the photographs of weddings, engagements, and other events where other family members and friends may be present. The USCIS understands that some people escaped to America because their home country or culture strictly forbids gay relationships. In those cases, it is probably nearly impossible to have photos of a family gathering, wedding, engagement of a gay couple since they could both be executed for doing something as simple as entering into a relationship with a person of the same sex. Therefore, it is probably OK in that case to not have photographs of family gatherings or wedding celebrations. But this is not to say that you shouldn’t have any photos at all. Most people in relationships, gay or straight, go on trips or vacations and spend time with each other. Just show those photos. It will be ok that the photos may never contain family members or friends. This is the one aspect of a gay marriage that will differ from a straight marriage and the USCIS understands that. Of course, if your home country is tolerant of gay marriages, like Netherlands, then you better have a good excuse why there are no public photos of the celebration of your gay marriage.

In general, the law does not differentiate green card applications between straight or gay marriages. The USCIS officer will look at and review the entire application as a whole. Additional supporting documents such as an explanation on how your home country or culture is intolerant of gays and that you found your happiness and freedom in America will probably help your case in proving without a doubt that the marriage is real. You can also obtain affidavits from friends who knows of your gay marriage/relationship and can vouch for you. The friends simply need to state how long they have known you, how did they get to know you, how did they get to know your spouse, how long have they known you have been marriage or in this relationship, and if they helped you in your relationship in some way. The one thing you don’t have to worry is being discriminated against for being in a gay relationship. It would be against federal law for the USCIS officer to deny your case base on bias or his/her own judgement. As long as your marriage is real, gay or straight, the USCIS has a duty to grant you the green card.

Good Luck!

Dual Intent Visas for Immigration

Nailia-visa.

Often, when coming to America, all visitor visas are labeled as Non-immigrant visas. This means that the person applying for the visa must demonstrate that they have no intentions on becoming a US citizen or permanent resident; basically no intentions on immigrating to America permanently. With that, the applicant almost always must demonstrate strong ties to their home country and show the visa interview officer that they will certainly return to their home country as soon as they are done with whatever they were doing in America. With these visas, it is always dangerous if you showed any intentions on immigration, such as having applied for green card or having a serious relationship with someone who lives in America. If you enter the country on a non-immigrant visa and you attempt to apply for green card too soon, such as within 90 days, your green card application will be denied because you entered the country under false intentions (you claimed you don’t want to immigrate to America but you filed for immigration). Other situations that may cause you to be denied entry is being on a non-immigrant visitor visa and file for green card, then leaving for a vacation/visit and re-enter on the same non-immigrant visa. If you already filed for a green card, you already demonstrated without a doubt that you have full intentions on immigrating to America. The USCIS/CBP will NOT let you in the country on a non-immigrant visa!

So, the main point is that you must always use the appropriate “intentions” with the appropriate visa. This means that if you do intend on immigrating, you should use a immigration visa. If you really just want to visit/stay in America for a period of time and then return to your home country, then by all means use the non-immigrant visitor visas. However, there are some exceptions to this rule. The USCIS recognizes that there are some visas that really don’t apply to these “intentions” rules. These visas are categorized as non-immigrant visas, but the USCIS is fully aware and probably expect the visa holder to file for green cards in the future. For some reason this is OK, probably because USCIS expects what you will do, instead of trying to outsmart them. These visas are called dual intent visas. Dual intent visas allows the individual to enter as a non-immigrant (meaning they intend on returning to their home country after their stay is over), but with the option to file for green cards if they are able to. Here are some of the common dual intent visas:

H-1B and H-4 Visas

The most common dual intent visas has to be the H-1B visas. (Other H visas do not qualify, like H-2 H-3)These are the visas issued to skilled workers that are taking jobs that require specialized skills which no Americans could be found to do. The majority of these visas are of Indian nationals. They are your IT workers, software developers and anything to do with engineering. Although these visas are issued under the pretense that these skilled workers are only working temporarily in America, the USCIS knows very well that their employers usually will file a EB-2 based green card for them. So, even though H-1B is categorized as a non-immigrant visa, it is a dual intent visa meaning that the visa holder is free to demonstrate their intentions on becoming a permanent US resident at any time. If the H-1B visa holder files for green card, they can still leave and re-enter the country on the H-1B visa because the USCIS knows that they have immigration intentions. H-4 visas are simply the dependent visas of the H-1B visa holder. Recently, the USCIS even changed the rules for H-4 visas regarding employment so that any H-1B visa holder who files for green card, can also apply for their H-4 dependents to begin working legally without restrictions in America, before the green card application is issued. Therefore, for a H-1B worker entering America, he can say to the CBP officer that he wants to permanently immigrate to America upon his entry and the CBP officer would just give him a smile.

K Visas

The next most common dual intent visa is the K visas. This visa, the K-1, K-3 and K-2, K-4 visas (K-2 is the dependents of K-1, K-4 is dependent of K-3), really should be a fully stated immigrant visa. The K visa is designed for someone who is living outside America to come to America to get married to a US citizen or someone who is already married to a USC and has a green card application pending. If this is not a clear intention of immigration, I don’t know what is. However, for some reason, the USCIS classifies K visas as non-immigrant visas. Maybe it is because technically the K-1 visa holder has 90 days to decide if they want to marry the US citizen and live in America. There are times when people get here, realize their US citizen fiance is not good, or that they don’t like America, and decide to leave. Maybe K-3 visa holders come to America and realize their home country is more suitable and will convince the USC spouse to leave. Regardless, anyone who enters on a K visa is considered dual intent and the USCIS will have no issues with them filing for green cards.

L Visas

Another common dual intent is the L visa. The L visa is designed for a multinational corporation to transfer its employees from another country into its American offices. The L visas are issued to people who transfer, under the same company, from a foreign country to America. Because often the transfer results in a permanent position for the L visa holder, the company usually files a EB based green card for the employee as well. Because of this, the USCIS views L visa as dual intent and that if the visa holder files for green card at any time, it is OK. If the L visa holder attempts to re-enter the country after a green card application has been filed, that is OK too.

V Visas, O Visas, P Visa an E Visas

The V, O, P, and E visas and their dependent versions are all considered dual intent. These visas, however, are not common. V visas are for spouses and dependents of a US permanent resident to come to America to join the US permanent resident while their green card is pending. However, these visas are practically non existent because it is only issued for those who filed a I-130 before December 21, 2000. The O visas are for people who are extraordinary in their professions, like Nobel Prize winners, Olympic athletes, etc. These people can immigrate to America with ease because of their talents and achievements. America wants the best people and will give green card to those who demonstrate it. The P visas are for famous celebrities, entertainers, movie stars, athletes to visit and stay in America if they wish. Lastly, the E visas are for serious investors who will invest large sums of money in American corporations or startups. They are usually the ultra wealthy and probably don’t want to immigrate to America because of tax reasons.

In conclusion, depending on what visa you entered America with, you have to be careful with your immigration applications and intentions. If you did not enter America on any of the visas listed above, you have to be really careful in attempting to file any immigration application. If you enter as a non-immigrant and try to outsmart USCIS and file for permanent immigration, chances are you will be denied. The only exceptions are the dual intent visas above, and you may breath a sigh of relief if you have one of the above visas and are undergoing a green card application.