Can I sponsor for my same-sex partner for green card?

Q: I got married two years ago to my partner, who came into the country illegally many years ago. We have been together for ten years. Now that DOMA has been struck down, can I apply for him to get his green card?

A: Thanks to the recent Supreme Court decision on the Defense of Marriage Act (DOMA), U.S. citizens can now apply for green cards for their same-sex foreign national spouses. Foreign nationals who entered legally and who even overstayed a visa can remain in the United States and adjust status based on an I-130 petition for immediate alien relative, filed by a U.S. citizen or lawful permanent resident spouse (LPR).

In most situations, if someone overstays a visa, he accrues unlawful presence in the United States, and if he departs at any time, will be subject to a 3/10 year bar, depending on how long he was unlawfully in the country. If someone was unlawfully present in the U.S. for more than six months but less than one year, he will not be allowed back in the United States for three years. If he has been unlawfully present for more than one year, he will not be allowed back in the United States for ten years. However, a bona-fide, lawful marriage to a U.S. citizen will allow a foreign national spouse to adjust status in the United States, even if he had previously been unlawfully present.

Unfortunately, the process to get a green card for someone who entered illegally (entry without inspection, and commonly called “EWI”) is more difficult. In this situation, the foreign national spouse still has to return to his home country for the green card interview and also file what is called an I-601 waiver. For this waiver to be approved, the applicant must show extreme hardship to the U.S. citizen. Factors such as longevity of relationship, health needs, economic struggles, etc. may help to establish this requisite hardship.

The good news is that the United States recently changed its policy, enabling the foreign national spouse to file for the waiver before he goes for his consular interview and stay in the United States while his waiver is being adjudicated. If the waiver is approved, then the spouse can travel to his country of citizenship for the green card interview, eliminating potentially long wait periods outside the United States for the adjudication of the waiver, and also eliminating the possibility of him departing the United States only to be denied a waiver and not being allowed back in.

For your case, the first step is to submit an I-130 petition on behalf of your spouse. Once that’s approved, you would file the I-601 waiver, with documentation demonstrating extreme hardship to you if you are separated from your spouse. If the I-601 is approved, your spouse can then return to his country of origin for the green card interview without worrying about the consequences of his long period of illegal stay after the EWI entry.

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