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Chicago LGBTQ & Same-Sex Marriage Immigration Lawyer

LGBTQ immigrant rights have evolved significantly over the last decade, but lesbian, gay, bisexual, transgender, and queer couples still face unique challenges when pursuing fiancé and spouse visas. If you are in an LGBTQ relationship with a foreign national, a same-sex marriage immigration lawyer at Freedom Immigration can help you overcome the obstacles that are keeping you and your partner apart.

Our LGBTQ immigration attorneys will evaluate your eligibility for a fiancé visa or same-sex marriage green card, guide you through the USCIS application process, prepare you for the immigration interviews, and help smooth your transition to living and working in the United States.

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Contact a Chicago LGBT immigration attorney at Freedom Immigration for a free consultation. Call (224) 588-3536

Table of Contents :

Challenges Married Same-Sex Couples Face When Immigrating to the U.S.

Although same-sex marriage is legal in every state in the U.S., and LGBTQ marriages are to be treated the same as heterosexual marriages under U.S. immigration law, couples continue to face obstacles that members of heterosexual couples rarely face. One of the biggest hurdles for same-sex partners who are seeking fiancé visas or marriage-based green cards, is proving that they are in a bona fide relationship. 

How to Prove You Are in a Bona Fide LGBTQ (Same Sex) Relationship

Proving you are in a genuine romantic relationship with your same-sex fiancé or spouse might include:

  • Providing lease documents or utility bills with both of your names as evidence that you live together with your partner
  • Demonstrating that you have knowledge of each other’s parents and other family members, including names and birthdays
  • Showing proof that your marriage is legally valid in the location where you were married if you’re seeking permanent residency (a green card) for your spouse
  • Including photographs of you and your partner spending time together
  • Providing documentation of joint bank accounts, memberships, credit cards, or subscriptions

Although the law requires USCIS officers to treat LGBTQ couples with the same respect and dignity as heterosexual couples, bias may still exist. However, it is rare for USCIS to deny fiancé visas and marriage-based green cards based on homophobia or discrimination.

Immigration Rights for LGBTQ Couples and Families

On June 26, 2013, the United States barred Federal prohibition of same-sex marriages when the Court ruled in United States v. Windsor, declaring the Defense of Marriage Act (DOMA) unconstitutional. In 2015, the U.S. Supreme court took additional steps to protect the rights of LGBTQ couples, ruling in Obergefell v. Hodges. This ruling requires all U.S. states and territories to issue marriage licenses to, and recognize the marriages of, same-sex couples. These and other major court victories for the LGBTQ community have helped pave the way for same-sex couples and their families who wish to immigrate to the United States.

How does the evolution of LGBTQ rights impact your ability to enjoy equality as an immigrant in the United States?

Same-Sex Fiancé Visas

Obtaining a K-1 fiancé visa is the first step for same-sex couples who have not yet gotten married, but want to bring the foreign partner to the U.S. so they can begin their lives together in the United States. The K-1 visa also serves as an important immigration tool if your significant other lives in another country that doesn’t recognize LGBTQ marriage and that has prevented you from petitioning for a spouse visa. If your spouse is a national of one of the African, Asian, Caribbean, or Middle Eastern countries that doesn’t recognize gay marriage, our LGBT marriage immigration attorneys can help you obtain a fiancé visa. Once your partner is in the U.S. and you get legally married anywhere in the United States, we can guide you and your same-sex spouse through obtaining a marriage-based green card.

Same-Sex Marriage Green Cards

Your LGBTQ marriage is legally recognized throughout the U.S., and treated the same as an opposite-sex marriage for immigration purposes. Therefore, you can petition to bring your spouse to the United States with a marriage-based green card as long as you are a U.S. citizen or permanent resident, and your marriage took place in a country where gay marriage is legally recognized. Spouses who live outside the United States will need to apply through consular processing from their country of origin. If your spouse has already arrived in the United States, our attorneys can help them apply for an adjustment of status. Once your spouse has obtained a green card, your partner will be able to live and work in the United States. When your spouse becomes eligible, our LGBTQ immigration attorneys can guide you through the naturalization process to become a U.S. citizen.

Immigration Rights for Children of Same-Sex Couples

The evolution of LGBTQ immigration right also impacts the children of same-sex couples. If you are a United States citizen or permanent resident, you can petition to bring your same-sex partner (fiancé or spouse) to the U.S., and sponsor your stepchildren as well. A policy change was recently issued by the State Department that allows children who were born through surrogacy or in vitro to same-sex couples to immigrate to the United States and obtain U.S. citizenship, as long as the children are genetically related to at least one parent. Previously, foreign born children were required to be genetically related to the spouse that was a U.S. citizen to be eligible for citizenship.

Refugees and Asylees

In many countries, members of the LGBTQ community are targets for discrimination, violence, and persecution. In as many as 11 countries, the death penalty is a possibility for those who are convicted of homosexuality. Most LGBTQ asylum seekers come from El Salvador, Honduras, and Guatemala. The evolution of LGBTQ rights in the United States has helped make our country a safe haven for people who are seeking protection from violence and persecution for their sexual orientation or gender identity in their home country. It is estimated that 1.3 million LGBTQ immigrants currently live in the U.S. Our immigration attorneys can help LGBTQ individuals who would like to seek asylum or refugee status in the United States

Transgender and Non-Binary Applicants

As of April 2023, transgender and non-binary immigrants are no longer required to match the gender identity shown on their supporting documents when immigrating to the United States. They can select the gender with which they identify, except when applying for a replacement naturalization certificate or citizenship document. Although there are currently only two gender options on USCIS forms, male (M) and female (F), the Department of Homeland Security is working on adding gender marker (X) to include unspecified genders.

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Same-Sex Marriage Green Card Timeline

The timeline for obtaining a same-sex marriage green card is the same as the timeline for getting an opposite-sex marriage-based green card. Regardless of your sexual orientation or gender identity, the time it takes to become a permanent resident depends mostly on the path you take. If you are seeking to gain entry into the United States quickly, applying for the fiancé visa is the fastest route. The road to getting your green card, however, is significantly longer because there are more processes to go through after you are married.

If you are already married to a U.S. citizen, and you are living in the United States, the process can take between 11.5 and 31 months. If your spouse is a green card holder, and you live in the U.S., you could wait as long as 59 months to get your green card.

Wait times tend to be shorter for foreign spouses who live outside the U.S. If you are living abroad and your spouse is a U.S. citizen, you can expect to wait between 12.5 and 18 months to get your green card. If your spouse is a green card holder, however, it will be between 10.5 and 30 months before your application is approved if you’re living outside the U.S.

Concurrent Filing May Expedite Your Same-Sex Marriage Green Card

Filing Form I-130 and Form I-485 together may reduce the time it takes to get through the green card application process. With concurrent filling, you can expect to wait between 10.5 and 29 months; depending on your situation and location. If you are filing concurrently, your application package must include:

  • Petition for Alien Relative, Form I-130
  • Supplemental Information, Form I-130A
  • Green Card Application, Form I-485
  • Affidavit of Support, Form I-864
  • Report of Medical Examination and Vaccination Record, Form I-693

You can only take advantage of concurrent filing if you are living in the United States under a non-immigrant visa, and you are married to a United States citizen. 

FAQs About LGBTQ & Same-Sex Marriage Immigration

What if I got married in a country that does not recognize gay marriage?

There are currently over 60 countries throughout the world that do not recognize gay marriage. If you and your spouse were married in one of them, you have a couple of options for beginning your life together in the U.S. First, you can get married again in a country where the marriage is legal, and then proceed with obtaining a marriage-based green card. Second, you can petition for a fiancé visa, bring your spouse to the United States, and get married anywhere in the country within 90 days. As soon as you are married, our LGBTQ immigration attorneys can help you obtain your marriage-based green card.

Are there special requirements to obtain a same-sex marriage green card?

Since same-sex marriage is treated the same as heterosexual marriage in the United States, there are no special requirements to obtain a same-sex green card. You may encounter challenges that are unique to LGBTQ couples, however, when submitting your application and preparing for the green card interview. LGBTQ green card lawyers can help you navigate the system and learn more about what to expect. 

Your child does not need to be biologically related to a U.S. citizen to come to the United States. Recent changes in the laws enable foreign-born children to obtain family-based green cards as long as they are genetically related to one of the foreign fiancé or spouse, or the U.S. citizen. This law applies to children born through in vitro fertilization and surrogacy as well.

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The U.S. immigration system is multifaceted, encompassing a broad range of categories and subcategories for immigrants desiring to reside permanently in the United States.