President Biden recently declared June 2022 Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Pride Month. June has also been declared National Immigrant Heritage Month for several years, including most recently by President Biden on May 31. The intersection of these two celebrations caused us to reflect on the June 2013 U.S. Supreme Court decision in United States v. Windsor and its impact on both the immigrant and LGBTQI+ communities.

Windsor held that the government cannot discriminate against married gay and lesbian couples when determining federal benefits and protections. This changed who could receive certain federally-administered spousal benefits, including immigration benefits, which were made equally available to same-sex couples. Although the legal standard and immigrant visa petitioning process is now equally applied to same-sex couples and heterosexual couples, it is timely to review how these concepts relate to family-based immigration petitions for same-sex couples.

1. Proving a Legally Valid Same-Sex Marriage

Understanding the laws of the jurisdiction

All spousal-based immigration petitioners must prove their marriage was entered legally in the jurisdiction where the marriage was established. Because same-sex marriage is recognized as legal in every jurisdiction in the United States, a domestic marriage will generally be deemed legally valid for immigration purposes. However, marriage between same-sex couples is legally performed and recognized in 30 other countries. Chile most recently legalized same-sex marriage in March 2022. Switzerland will be next, starting on July 1. Same-sex couples who marry abroad should understand the foreign country’s same-sex marriage laws to make sure their marriage meets the legal standard to confer U.S. immigration benefits to spouses.

Managing the limitations of civil unions

Before same-sex marriage was legalized at the federal level, some states allowed same-sex couples to enter a civil union or domestic partnership to obtain and confer certain state-administered spousal benefits. But, couples who have entered a civil union or domestic partnership will not be deemed married for immigration purposes unless and until they legally marry.

Complying with public policy considerations

Marriages reviewed by USCIS for purposes of immigration benefits cannot be contrary to federal public policy (i.e. polygamous or incestuous). All prior marriages must be legally terminated before a U.S. petitioner and foreign spouse marry. This can take place through annulment, divorce or the death of the prior spouse.

2. Proving a Bona Fide Same-Sex Marriage

A marriage-based immigrant petition must also include evidence to prove that the petitioner and beneficiary have a bona fide marriage, meaning that the marriage was not solely entered into to obtain an immigration benefit. USCIS provides the following examples of evidence that can be submitted to meet this requirement:

    • Documentation showing joint ownership of property
    • A lease showing joint tenancy of a common residence, meaning each spouse lives at the same address together
    • Documentation showing combined financial resources
    • Birth certificates for the couple's children
    • Affidavits sworn to or affirmed by third parties having personal knowledge that the relationship is legitimate

The list above is merely an example of the kinds of evidence that can be submitted to support a marriage-based immigrant petition. These petitions can be approved with a combination of different evidence, as long as the couple can establish that the marriage was entered into in good faith. When adjudicating a petition for marriage-based immigration benefits for same-sex couples, USCIS should consider the entirety of the factual circumstances and credible explanations for why certain evidence is not available. Below are some of the ways same-sex couples who file an immigrant petition can improve their chances of success on the merits:

    • A common concern for same-sex couples is that they lack photos with family members who did not participate in their wedding celebrations. Petitioners can overcome this obstacle by supporting their cases with other evidence of the couple’s life together.
    • All prior marriages must be disclosed and terminated before immigration benefits can be conferred. But a prior marriage will not necessarily limit the receipt of immigration benefits, as long as it was legally terminated and was not entered into solely to obtain an immigration benefit.
    • Showing proof of cohabitation or joint ownership of property can be difficult for certain same-sex couples. In those cases, the couple should be prepared to provide a reasonable explanation for why they reside separately or why they do not yet have documentation of joint ownership of property.
    • Other examples of evidence that can help establish a bona fide marriage include but are not limited to:
      • Communications between the spouses such as phone records, emails, text messages, social media interaction or cards exchanged on special occasions
      • Evidence that the spouse has been added as a beneficiary on an insurance policy
      • Invitations or letters addressed to both spouses at the same address
      • Jointly filed tax returns reflecting marital status
      • Statements obtained from friends, roommates or coworkers

3. Taking Advantage of Marriage-Based Immigration

Marriage-based immigration benefits are available regardless of gender or sexual orientation. Qualifying individuals have the right to petition USCIS so certain relatives can become lawful permanent residents of the United States. They also begin their journey to obtain U.S. citizenship. Individuals seeking immigration benefits for their same-sex spouses should navigate the legal process with experienced counsel.