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11 Important Questions Answered For Same-Sex Couples
The recent U.S. Supreme Court decision striking down the Defense of Marriage Act opens the door for same-sex couples to benefit immediately from the laws that allow a U.S. citizen or permanent resident to petition for legal residence for a spouse.
The Department of Homeland Security has indicated that same sex couples only need to be legally married in a U.S. state or a foreign country that allows same sex marriage for immigration benefits to be available to the spouse born outside the US.
Q. If I marry in California or one of the 13 states that allows for same-sex marriages and I move to a state that doesn't recognize my marriage, can I still petition for my foreign spouse?
A. Yes. USCIS will recognize a marriage if it is valid in the state where the marriage occurred. If you travel to a state to marry, you must comply with that state's marriage laws, including the state's residency laws. California, for example does not restrict people from other states getting married there. All you need is a valid marriage license and you are ready for the ceremony. As a matter of fact, the
Oester ... Riccobono Law Group is filing a permanent residence petition for an Arizona same sex couple next who was married in California on July 13 just last week.
Q. What if I get married abroad? Can I petition for my same-sex spouse?
A. If your marriage is valid in the country where it took place the answer is YES.
Q. I’m a permanent resident. Can I petition for my same-sex spouse?
A. Yes, you can.
Q. Once we get married, how long does it take for the immigration petition to be approved?
A. It depends on whether your spouse entered the United States with a visa or no documents at all. In the first instance and at current processing times at USCIS, you can anticipate about four and half months. In the case of an undocumented spouse, the petition approval process is taking 5-6 months. For those spouses, there is a second step that will take an additional 3 months before the residence interview.
Q. I heard on the radio that the immigration Reform law is dead and that there will be no Reform. Is that true?
A. It’s not dead but there are some difficult challenges ahead over the next several months in the House of Representatives. Some people are beginning to think it will not survive those challenges. But, it’s too soon to draw any conclusions.
Q. If Reform passes, when will we know it is finished and will become law?
A. Some experts with knowledge of the process in the House of Representatives believe some form of immigration Reform will pass in late September. But, the process will not be over just then. If the law that passes in the House is different than the law that passed the Senate last month, the two ‘proposals’ go to a Conference Committee, where negotiators from the House and Senate try to compromise and make a single law out of the two proposals. If they are successful, the new compromise proposal has to go back to be approved by both the House and the Senate. If the law passes both Houses of Congress and the President sign it, then we know immigration Reform is here.
Q. That sounds very complicated. How long will it take?
A. If the House passes some form of immigration Reform in late September, the Conference Committee process can take another month. But, remember, if there is no agreement, the Reform proposal could die in the House of Representatives or the Conference Committee.
Q. OK, let’s assume the President signs the new law on October 31. Can we apply for Reform right away?
A. Probably not. The Senate version of the Reform law requires 6 months to pass after the President signs the law before anyone can apply. I expect any version of Reform that is signed into law will include this same delay. For that reason alone, we encourage undocumented people who are eligible for an immigration program, now, not to wait for Reform. There is no guarantee it is coming and even if it does, the ability to apply may not be coming soon.
Q. What kind of immigration programs are available now?
A. One of the best is deferred action for young people that were brought to the US before age 16 and have lived in the United States since before June 15, 2007. Those who are approved do not have to worry about being deported, they will get a work permit and their own social security card in 3-5 months and, they get a streamlined process through Reform and can become citizens in only 5 years.
Q. I have to be a student to qualify for deferred action, don’t I?
A. Absolutely not. You do not need to be in school to qualify for deferred action.
Q. What other programs should people be applying for?
A. Anyone married to a US citizen or permanent resident should file a family petition immediately. The wait for residence is only between 4 and 12 months, and the immigrant family member will not have to pay the fines and wait 10 years like the Reform people will be required to do.
If you have questions about any of these immigration programs, call us a 602.244.1150.
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