g********d
发帖数: 4174 | 1 General information, such as that provided below, does not constitute
individual legal advice nor is it meant to take the place of individualized
legal advice; however, we do hope to answer some of the questions we hear
most often. You should always consult with a qualified immigration attorney
about the individual facts of your case before making any decisions about
your particular situation.
------------------------------------------------
What did the Supreme Court say about DOMA?
The U.S. Supreme Court held that Section 3 of the Defense of Marriage Act (
“DOMA”) is unconstitutional. Section 3 of DOMA was a federal law that
limited federal marriage recognition to different-sex couples. Because
immigration law is federal, DOMA prevented lawfully married lesbian and gay
couples from obtaining lawful permanent residence (“green cards”) through
marriage. Now that DOMA has been struck down, American citizens and lawful
permanent residents can submit green card applications for their same-sex
spouse.
----------------------------------------------
Can LGBT couples get green cards now?
Yes, most families will now be able to obtain a green card.
With the end of DOMA, LGBT families will be treated the same under
immigration law as different-sex immigrant families. Immigration law is
complicated and there will still be barriers for some couples, but the
systemic discrimination that prevented our families from receiving the same
respect under the law as others has ended. Green card applications will no
longer be denied solely because a couple is lesbian or gay.
-----------------------------------------
Do we have to live in a marriage equality state to apply for a green card?
No. If you have a marriage that is valid in the state or country where you
were married – regardless of where you live – that marriage makes you
eligible to apply for a green card.
The United States Citizenship and Immigration Services (“USCIS”) looks to
see whether you entered into a valid marriage in the state or country where
you married. While some federal benefits may only be available to married
couples if you live in a state which recognizes your marriage, fortunately,
this is not the case for immigration benefits.
------------------------------------
We married in Canada. Do marriages from outside the U.S. count?
Yes. As long as the marriage was validly entered into, it is sufficient for
immigration purposes. In fact, Edie Windsor, the plaintiff in the Supreme
Court case, married her wife in Canada.
Does a civil union or domestic partnership count?
The answer to this is not entirely clear, and we hope to have guidance on
this soon. If it is possible for you and your partner to marry, you may be
better off marrying because you could then feel more secure that your
relationship will be recognized for immigration purposes without having to
wait for further guidance.
-------------------------------------
My partner can’t get a visa to get to the United States, and we can’t
marry in his/her country. What are our options?
U.S. citizens can file fiancé/e visa applications for committed partners.
This application requires the couple to demonstrate that they have a “bona
fide” relationship. When the visa is granted, the couple is required to
marry within 90 days of the foreign partner’s entry into the US. Once
married, the couple can file the marriage-based application from within the
United States.
For families that can travel to another country that has marriage equality,
another option would be to marry there and then have the U.S. citizen
sponsor the foreign national spouse for a green card through consular
processing in his/her home country.
----------------------
We live in exile. How soon can we come home?
For couples in exile together, the U.S. citizen could file for a fiancé/e
visa or the couple can marry and the foreign spouse can consular process. It
will take several months before a visa is actually issued, but processing
times vary by consulate. Therefore, we cannot say exactly how long it will
take before families are able to return to the United States. Keep in mind
that once a foreign national becomes a green card holder, s/he must live
primarily in the U.S. If you are not ready to move home, it may be too soon
to apply.
------------------------------------
Once I apply to sponsor my spouse, how long will we have to wait until s/he
can work?
For couples who live in the United States together, it is common to file an
application for work authorization along with the application for lawful
permanent residence. Processing times vary throughout the U.S., but
generally employment authorization documents (EADs) are issued within 90
days, and marriage-based interviews are generally scheduled within 9 months
after filing.
---------------------------
My partner is here on a work visa. Is a marriage-based visa better?
It depends. In general, marriage-based petitions are adjudicated quicker
than many other applications for lawful permanent residence. Employment-
based petitions are complex, with most categories requiring the employer to
prove that there are no U.S. workers able, willing, and qualified to fill
the position. There is also an annual cap on the number of employment-based
green cards that can be issued, which has created years-long backlogs in
several employment-based categories. Since there is no limit to the number
of green cards that can be issued to the spouses of U.S. citizens, a
marriage-based petition may result in a green card much more quickly.
However, in a marriage-based case, the American spouse has to file an
affidavit of support proving that he or she can maintain the applicant at
above 125% of the poverty level. So, in some cases, it may make sense to
pursue lawful permanent residence through an employer if that’s an option.
Regardless of whether a foreign national obtains a green card through a
marriage-based petition or through a different avenue (like an employer), he
or she can apply to become a citizen after three years (rather than five)
if married to an American citizen.
---------------------------
I am undocumented, my partner is American. Can we apply?
It depends. Under U.S. immigration law, the general rule is that a person
who is in the U.S. without lawful status cannot change from within the U.S.
from being here unlawfully to being here lawfully. One significant exception
to this rule is that the spouse of a U.S. citizen can apply for a green
card from within the U.S. (to “adjust status”) as long as he or she
entered the U.S. through a valid port of entry, in other words, following
inspection by a U.S. official.
For those undocumented individuals who entered the U.S. without inspection (
“EWI”), the applicant must return to his or her home country to apply. In
the past, this was unworkable for most families, because once the applicant
left the country he or she was barred from returning for many years. There
is now a waiver available which can minimize the length and uncertainty of
that wait.
---------------------------
We have children. How will this affect them?
Generally, when a U.S. citizen files an application for lawful permanent
residence for a spouse, he or she can also file for the spouse’s children
as “step-children.” Even if you don’t see your children as “step-
children,” if the foreign spouse is the biological parent of the children,
filing a step-child petition for lawful permanent residence will probably
provide the most efficient way to obtain their green cards. You and your
partner must have married before the child turned 18, and the child must
currently be under 21 and unmarried in order to get a green card at the same
time as the parent’s marriage-based green card.
-----------------------------------
What about the immigration reform bill? Do we need to be in it now?
As long as USCIS and the Department of State interpret the Supreme Court
decision as they should, we should not need further legislative action to
provide relief to married lesbian and gay couples.
Immigration reform is still important for LGBT people, however. There are
critical protections in the bill for asylum seekers, alternatives to
detention for LGBT detainees, and procedural protections for those who are
detained, including limiting the use of solitary confinement for LGBT
detainees. The bill also provides a pathway to citizenship for those who are
in the U.S. without lawful status, at least a quarter-million of whom are
LGBT. The bill further provides an accelerated path to citizenship for
DREAMers, young people who came to the US as minors, grew up as Americans,
and whose movement for change has been led by many brave LGBT people.
----------------------------
Do we need a lawyer? Do we need a lawyer that specializes in LGBT issues?
It’s always a good idea to have a lawyer when applying for an immigration
benefit and spousal petitions can be very complicated. Immigration Equality
maintains a referral list of private immigration attorneys who have an
understanding of LGBT issues.
Immigration law is very complicated. While many people successfully file
marriage-based applications for lawful permanent residence without a lawyer,
we generally recommend that people should seek out representation by
qualified counsel.
------------------------------
Will Immigration Equality be our lawyer?
With an estimated 36,000 same-sex binational couples living in the United
States and many more separated or living in exile abroad, Immigration
Equality’s legal team cannot personally represent all the families who will
be applying in the days and months ahead.
We have a referral list for LGBT-friendly private immigration attorneys
which we are happy to share. We are continuing to provide technical support,
training, and mentoring for these attorneys and will advocate with the
relevant agencies if we hear of problems with applications after the DOMA
decision. We are working closely with attorneys on our referral list to
ensure they have all the information necessary to help LGBT couples.
Immigration Equality maintains a referral list of private immigration
attorneys whom we have trained on these issues, and we are collaborating
with the American Immigration Lawyers Association to make those training
materials available to all reputable practitioners.
-------------------------------
What can we do today to start preparing for our application? What kind of
things do we need to gather?
It is important that you and your partner be legally married. As with any
marriage-based petition for lawful permanent residence, you will need to
prove to USCIS that your marriage is “bona fide,” that is that you married
for love and not merely to get an immigration benefit. Thus, USCIS will
look for proof that your relationship is real, including proof that you:
live together; share finances; hold each other out as a couple; spend
holidays together, in some cases raise children together, etc. It will be
helpful to begin to put this type of evidence together. For more information
about the procedural requirements of filing for the green card please, see
our FAQ on adjustment of status.
------------------------------------------
Does Immigration Equality plan to close? Why do you keep asking for
donations?
Over the months ahead we will keep pushing the Obama administration to issue
green cards without delay, and troubleshooting problems for families in
exile, especially those with young children. We will keep training private
attorneys and government officials in how to handle special issues that
arise for LGBT families. We will keep taking and placing asylum cases for
people who are fleeing for their lives. We need your support to do all of
these things. Immigration Equality expects to answer thousands of requests
for help over the next few months. We will do that – along with training
our network of attorneys – with a tiny in-house legal staff and a limited
budget. Your support ensures that we can connect everyone to an LGBT-
friendly attorney, trained by our team, who can help you apply. Immigration
Equality’s board of directors has undertaken a strategic planning process
to determine what’s next for the organization. We will not close our doors
until every LGBT family is treated equally under our immigration laws, and
asylum seekers have the safety and security they need.
- See more at: http://immigrationequality.org/2013/06/the-end-of-doma-what-your-family-needs-to-know/#sthash.jyasJvaX.dpuf |
|
