inside immigration information about marriage green cards and work visas in America
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I am often asked whether Immigration Officers in the USA conduct the marriage green card interviews differently for same sex married couples, especially those in which their partner entered on a B2 visa. The answer is no, but there are different aspects of “proof of marriage” evidence provided during adjustment of status that may make proving that a same sex couple lives together a bit more difficult in some gay marriage cases.
Proving Gay Couple has History of Joint Financial Assets & Joint Monthly Bills
When it comes to granting marriage green cards to binational couples, same sex couples are held to the same legal standard as different sex couples. To be granted adjustment of status, the gay married couple must prove (a) one of them is a U.S. Citizen, (b) that they are legally married, and (c) that they live together in a marital relationship.
Proving the first two requirements is generally straight forward. Proving U.S. Citizenship is a matter of presenting a birth certificate or USA passport. Proving the marriage ceremony occurred is a matter of presenting the marriage certificate.
Proving the third, that a gay married couple lives together in a marital relationship, can be a bit complicated. In general, the idea is to submit as many joint account statements as possible that list both names and the same address on them. The more accounts held jointly in both names the better, no matter how high the account balance.
One obstacle to adding a foreign national spouse’s name to a financial account is their lack of a social security number or ITIN. Foreign nationals who entered the USA on a B1/B2 visa and applied for adjustment of status are not immediately given a social security number of an ITIN number. Usually by the time the marriage green card interview is scheduled, the social security number has been issued and joint accounts can be opened.
Immigration Officers are familiar with this dilemma but still expect gay married couples to provide them with proof of at least some joint accounts. Evidence of a joint rental agreement, joint zoo membership or Netflix account or magazine subscription in both names could be obtained, all of which to may not require a social security number or ITIN.
Some gay married couples have proudly added both of their names to everything, but others (often for very good reasons) have kept their accounts completely separate.
Unfortunately, if a same sex couple applies for a gay marriage based marriage green card, they will be expected to present the same amount of proof of living together at the marriage green card interview that a different sex couple is required to submit. If they can’t, they should be able to provide good reasons (in writing) for not doing so, such as a signed written statement, police reports, etc.
Proving Family Was Informed About Marriage
Another requirement that everyone is expected to meet in order to get the marriage green card is interaction with each others’ family. This is proven through the submission of photographs taken at the wedding, holidays and special events.
There are many reasons why a same sex couple might not have spent time with each others’ family and/or certain friends. The same sex couple should gather as many photos taken of both of them, as well as photos taken with each other’s family, and put them (2 on a page) on 8 1/2 x 11” paper in chronological order.
Does it seem like there are no family or family alternatives in the photos? If you are missing photos of significant moments with significant family, it may be a sign to the Immigration Officer that you are not living together in a marital relationship.
You may have a situation where it is just impossible to include key family member in your photos. Either they are deceased, live abroad, or are not supportive of your marriage. In that case be ready to provide an short concise explanation of why your family was not at the wedding and why they are not in the photos.
Previous Different Sex Marriage
The Immigration Officers are learning that many same sex spouses have a different sex marriages as part of their relationship history. Life is complicated. I have advised my clients to be open and truthful about their past. The Immigration Officers understand that society may be changing quickly, but in the past it was unacceptable (and dangerous) in most parts of the USA to come out – and many people have a different sex marriage history that sometimes includes children.
Questions from Immigration Officers so far have included “When did you realize you were gay?” “Does your ex know you are gay?” “Have your children met your new partner?” I advise my clients to keep their answers short and to the point – such as: “I was 34 when I came out, but I was already in a different sex marriage with two children.” “My children think he is my roommate, but in about two years when they are older we plan to tell them we are married.” My philosophy is, the shorter the answers, the less likely the Immigration Officer will ask more questions.
Immigration Officers Look at Whole Picture
I have found that the interviewing Immigration Officers have an understanding of what it is like for a same sex married couple to deal with discrimination based on sexual preference and disapproval by family members. However, just because family members are not in the photos, it does not excuse the same sex couple from finding other ways to prove that they live together in a “bona fide” marriage.
For example, if a same sex couple is missing photos with family members in them, they should try to present more joint financial documents (such as a life insurance policy, joint medical insurance, joint tax return, and/or joint car insurance) at the marriage green card interview to make up for it.
On the other hand, if a same sex couple is missing joint financial documents, they should present more photos, affidavits from friends/relatives, joint accounts that do not cost money (joint email address, joint twitter account, etc.) at the marriage green card interview to make up for it.
The interviewing Immigration Officers have had years of experience encountering different sex couples with 25+ years age difference and differing cultures and/or religions. Therefore age differences and differing cultures/relations do not seem to phase them – they have seen it all.
The Immigration Officers are trained to take into consideration all of the circumstances when faced with evaluating the “bona fides” of a marriage, whether it is a bi-national, bi-cultural, split age, or same sex marriage and in my experience is being very respectful of the LGBTQ community.
Call DANIELLE NELISSE at (619) 235-8811 at no charge at her office in Hawaii if you want to discuss legal representation for your same sex marriage green card case – there is no charge for a brief consultation.
The immigration rules are the same all over the USA, and she represents clients no matter where they reside (including abroad).
Other Immigration Answers for Same Sex Married Couples:
What are the issues if my gay spouse entered the USA as a B-2 Tourist ?
Exactly what happens at a marriage green card interview?
Tips on how to help your helping your partner adjust to America during the Adjustment of Status process.
What if my spouse entered the USA legally, but overstayed their visa?
What if my spouse is HIV positive?
Is “coming out” important to the Immigration Officer who conducts the marriage green card interview?
What if my partner is much more attractive and/or younger than I am?