08/06/2013 05:17 pm ET Updated Feb 02, 2016

LGBT Families: Green Light for Green Cards? Yes! But It Can Still Be Complicated

Last week something extraordinary happened: During the Pride celebration in Amsterdam, the U.S. Consul General invited the American LGBT community in the Netherlands to a celebratory reception marking of the end of the Defense of Marriage Act (DOMA). In a beautifully staged and catered affair in the grand mansion that houses the consulate, we LGBT families, who had been the ugly ducklings (at best) of U.S. immigration law, became, for a moment, the belles of the ball. Beautiful speeches were made. Important people were present. Toasts were offered. It was wonderful -- a true celebration of our emancipation.

After years of literally telling us "your Dutch marriage does not exist within these walls," suddenly the mood changed to "come one, come all, we want to tell you about your rights as Americans."

In an informational session just before the party, vice consuls (the people who issue U.S. residence visas) and staff from U.S. Citizenship and Immigration Services (USCIS, the government agency that must approve all marriage-based visa applications) told us how it was going to work.

They said: We have good news and bad news. The good news is that now we treat same-sex spouses the same way we treat all other spouses. The bad news is that now we treat same-sex spouses the same way we treat all other spouses.

The joke was that "equality" is not going to be so simple. That's for sure. In my work advising LGBT couples and families on the U.S. immigration process, I find that the procedures, in the best of times, can be complex and confusing for the average person. And some cases are particularly challenging, especially if there has been a history of immigration problems.

The good news is that the doors are flung open for our families. The Obama administration seized the opportunity to approve pending immigration applications for LGBT families as soon as the Supreme Court struck down the nasty part of DOMA that had been tying its hands. The basic immigration petition (known as form I-130) is now just as available to a married same-sex couple as it is to a married heterosexual couple. The government has already started approving these petitions for same-sex couples. This week Secretary of State John Kerry himself confirmed that, effective immediately, when same-sex spouses apply for a visa, the State Department will consider that application in the same manner in which it would consider the application of opposite-sex spouses.

The government also immediately started preparing guidance on a host of troublesome issues. Just last week it announced that it will reopen the cases previously denied because of DOMA, without charging new fees.

There are still a lot of questions. For example:

  • Q: Are our foreign "civil registrations" or "domestic partnerships" valid to get our partners a green card? A: We are still waiting for that guidance. The safest thing would be to get married.
  • Q: What happens if we come from a U.S. state that does not have same-sex marriage? A: That doesn't matter. For immigration purposes, a marriage is valid if it is valid in the place where it occurred. The important thing is to marry.
  • Q: How long will the whole process take? A: That's hard to say. If you live abroad, it could take up to year, perhaps longer. USCIS in America is taking six to nine months to answer your first petition, possibly longer if the government raises questions. Then you have to go through the immigrant visa process with the embassy or consulate, which is also a complex affair.
  • Q: But if it might take a year or more, can the foreign spouse visit the U.S. during that period? A: Yes, but only if they can get a visa if required and if the immigration officer at the border accepts that they intend to leave after their temporary visit.
  • Q: If we already live in America, can the non-U.S. spouse stay in America while the papers are pending? A: In many cases they can, but not always. Some immigrants are legally prohibited from applying inside the U.S. and must apply at a consular office abroad.
  • Q: If the immigration application is denied and we need to apply for a "waiver," what grounds are there for contesting the denial? A: Waivers of inadmissibility of spouses of U.S. citizens often turn on whether a U.S. citizen would experience "extreme hardship." This is a complicated subject, especially as to the meaning of "extreme." The waiver application needs to be carefully prepared and documented. Get professional help if possible.
  • Q: What about the biological children of the non-U.S. spouse, whom the U.S. spouse never adopted? Can they immigrate too? A: It generally depends on how the stepchild rules would apply.
  • Q: What should I do if I live in a country that does not have same-sex marriage and my partner cannot get a U.S. visa, so we cannot marry in America either? A: A "fiancé" visa is probably your best solution.
  • Q: What are the fees and costs? A: It's not cheap. Altogether, the cost of immigration could be over $1,000 per person just in filing fees, medical exams, etc. If you get a lawyer to help (probably a good idea), it will cost more.
  • Q: If I get a green card, do I have to actually live in America? A: Yes, though in some cases you can apply for advance permission to travel abroad for an extended period if you have a good reason.

These are just the garden-variety questions, and the answers might vary in specific cases. The law is still developing in this area. You should consult a qualified professional to get advice about your particular situation.

For LGBT families, there's more to it.

The truth is that the long history of discrimination that has afflicted our community didn't disappear when the Supreme Court struck down parts of DOMA. Legally, our families now have the same immigration same rights as any others, but in practice, many LGBT applicants have more complicated circumstances.

For years, members of our community have twisted their lives in knots. Because our families were not recognized, green cards were not available. People went to extraordinary lengths to keep their families together. I have heard shocking stories of same-sex couples with small children and homes and jobs in America whom the authorities treated like criminals, sometimes arresting or incarcerating the non-U.S. partner or even forcibly deporting them. To avoid this rough treatment, temporary visas were extended and extended, sometimes under questionable circumstances. Sometimes people overstayed their visas. Sometimes people got bad advice that exacerbated their situations. All this history can create obstacles to immigration today. Fortunately, in some cases those obstacles are surmountable and the law is forgiving.

Moreover, legal rights are not the only things that determine where a couple or a family chooses to live. For those of us, like me, who had to leave America years ago in order to live with our non-American partners, it may not be so simple to pull up stakes and return to America. However much we may long to return to the United States to live, many of us have built lives that would be tough to leave: careers, property, pensions, kids committed to foreign educational systems, etc.

All that being said, the fact is that it's a brave new world for the LGBT community. The demolition of DOMA has flung open the doors, for us and for all the generations to come. For those of us who still yearn to return home, despite having put down deep roots abroad, today might be a little too soon to take advantage of this shining opportunity. But it's wonderful to know that as soon as our personal circumstances permit, we can make that dream a reality.

The information contained in this blog post is of a general nature and might not apply specifically to your case. Legal situations are complex, and the law is constantly evolving. You should not specifically use or rely on the information contained in this blog post. You should consult a qualified professional about any particular case. This blog post alone does not create an attorney-client relationship between Bob Bragar and any person. The views expressed here are his own and not necessarily those of any other person or organization.