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LGBTQ Couples & Family-Based immigration: What to consider when documenting a Bona Fide Marriage

People have entered the United States through marriage for a very long time; it is perhaps one of the easier ways, at least in people’s minds, to gain entry and citizenship. However, many try to marry solely for the purpose of circumventing immigration laws, and that is fraud.  As a result, US Citizens and Lawful Permanent Residents (LPRs) have to endure a tough scrutiny from immigration officers to ensure that their marriage to a foreign national is indeed bona fide (in other words, in good faith, with the intent of making a life together) and not only for immigration purposes.

This is no different for the LGBTQ community. However, lesbians, gays, bisexuals, transgender, and queer people have had a very difficult time getting their relationships approved legally, in order to be eligible to the benefits that heterosexual couples always had, so it is important to mention the subtle differences that an LGBTQ couple might have to face while attempting to migrate legally to U.S. through marriage.

What are the main things any couple has to comply with in order to apply for permanent residency successfully, and what are some of the main issues LGBTQ people might encounter?

Overview Proving a Legally Valid and Bona Fide Marriage

First, USCIS will verify that the petitioner is either a U.S. citizen or a Lawful Permanent Resident. Then the couple must establish that their marriage is legally valid for immigration purposes, that at the time of the marriage they intended to live in a marital relationship, and that they did not get married solely for immigration benefits.  The USCIS officer will undoubtedly interview both spouses to determine if everything checks or if there is a chance of a fraudulent marriage. If the officer is convinced that the case has merit, the interview continues on to subsequent eligibility inquiries.

The Legal Standard of a Marriage

A. A Legal Marriage:  It has to be proven that the marriage was celebrated in a place where such a marriage is permitted. One of the most common hurdles for LGBTQ couples is that not every country allows marriage that is not between one man and one woman. So, LGBTQ couples must go to a place that will issue them a legally valid marriage certificate; this may mean traveling to a different state or country.

B. Legal Termination of Any Prior Marriages: Both spouses must prove that any prior marriages have been properly ended, whether by divorce or death. No marriage can be legal if it was celebrated while another marriage was still in place. It is important to ensure that the marriage and divorce dates do not overlap, or it might be necessary to divorce and remarry.

Documentary Evidence of a Bona Fide Marriage

The couple must be able to produce anything that can demonstrate that they have had a relationship and that it wasn’t only for immigration purposes, including: evidence of cohabitation, comingling of financial assets or joint ownership of property, joint tax returns or at least tax returns reflecting marital status, evidence showing that one spouse has been added to the other’s health or life insurance policy, automobile titles and/or insurance in both names, proof that each spouse’s work records have been updated to reflect the marriage, affidavits from family members and friends who have seen the couple together at social gatherings or important events and any other evidence that can tell the story of how the couple met and how their relationship developed (this may include things such as e-mails, text messages, photos of time spent together, etc.).

If the family is not in the picture, which sadly can be common for many LGBTQ couples, evidence has to be submitted to explain why this is the case. A letter detailing the reasons why one of the spouses has not “come out” to his family or how he/she has been estranged by his relatives will carry weight.

Another important situation that may raise a red flag for an USCIS officer is if a same-sex couple has had marriages with members of the opposite sex. It is not uncommon for people to “come out” until deep into their adulthood, and in many cases, these people end up having important relationships with the opposite sex. If this is the case, the person must be ready and willing to explain in detail the reasons behind the previous heterosexual marriages, and the reasons for the termination of said union.

Petitioners that immigrated through a prior marriage

are not permitted to file a visa petition for a new spouse for five years, unless the person can produce “clear and convincing evidence” that the marriage is bona fide, or if the previous marriage ended due to death.

Marriage Fraud

is a very serious crime, and spouses can face up to five years in prison and a fine of up to 250,000 dollars.

 

These are only some of the requirements that any couple must comply with when trying to immigrate through marriage. As you can see, most are exactly the same if the marriage is “heterosexual” or LGBTQ. However, the latter does have a few considerations that the former does not. We hope this overview helps, but if you still have questions, be sure to contact us for further information and guidance.

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The Law Offices of Connie Kaplan, P.A. offer aggressive and experienced legal representation for immigration cases, with a focus on family immigration and investor visas.

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