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LGBTQ Immigration

Same-sex marriages

In 2013 the Supreme Court overturned the Defense of Marriage Act of the 1996, known as DOMA, ruling that the Defense Marriage Act, which defines a marriage as a union between one man and one woman, is unconstitutional. Moreover, in 2015, the Supreme Court ruled in Obergefell v. Hodges that every state be required to issue marriage licenses to same-sex couples. Following both Supreme Court rulings, gay marriage is legal in every U.S. state.

This landmark decision allows U.S. citizens and permanent residents to sponsor their same-sex spouses. U.S. Citizens may petition for their fiancées living overseas, and both citizens and residents may begin the immigration process for their foreign-born spouses. 


As a consequence of the landmark decision, the United States Citizenship and Immigration Service (USCIS) will consider same-sex marriages as opposite-sex marriages in deciding on family green cards applications. However, there are few areas where it is advisable to have an experienced attorney when it comes to same-sex couples:


  • Proving a bona Fide Relationship: The foundations of any marriage based green card application is proving that you and your spouse have an authentic marriage, rather than a marriage solely intended to help the foreign national partner obtain a green card.

  • Legally valid marriage: In order to apply for the green card, you will need to be legally married in a country that recognizes same-sex marriages. Or alternatively, you may get married in any state in the U.S.

  • Concerns about bias: Consular officers and USCIS officers have a lot of freedom to use their discretion when granting a green card. Many couples worry about getting a biased officer. Therefore, is important to seek legal counsel to present the evidence in the best possible manner and to have an attorney accompanying the couple at the immigration interview to make sure that the couple’s rights are protected. 


Green card benefits for same-sex marriage

  • You can lawfully reside in the U.S. without fear of being deported.

  • You can work legally in the U.S.

  • You can obtain a driving license.

  • You can stay together with your spouse and family.


Applying for a same-sex marriage green card may be complicated, however, working with an experienced immigration attorney can make things easier and remove the stress that comes from dealing with USCIS.


LGBTQ Immigrant Rights for Refugees and Asylees

LGBTQ immigration through refugee and asylum status is also getting more attention as a viable means to immigrate to the United States.  You may qualify for refugee or asylum status and seek protection because you have suffered persecution or fear that you will suffer persecution due to race, religion, nationality, membership in a particular social group or political opinion. 


Social group is the most expansive of the 5 grounds for asylum. Courts have found that sexual orientation is a recognizable social group, saying that homosexuals and transgender people constitute a social group (see Matter of Toboso-Alfonso, 20 I&N Dec. 819 (B.I.A. 1990) and Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000).


If you need a compassionate assistance from an experienced attorney with all your immigration-related cases, please contact De Maio Law at (786) 200-7411 or send an email to

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