Can my same-sex partner obtain a green card through marriage due to a "notice of approval"?

nr_c

Registered Users (C)
I know this is a bit lengthy, but I have detailed questions.

My same-sex partner and I have been together for 2 years now, and we'd like to get married.

My partner has a B1/B2 visa (I believe that is a business-visitor/tourist visa)

Both of his parents have been US citizens since the late '70s, and they've claimed/sponsored him after he was born in Mexico. Although they claimed him long ago, he's still awaiting his visa.

I know I can marry my same sex partner in Massachusetts, Connecticut or any other state that allows marriage, but...

I know I can't apply for a green card for my partner due to (last time I read) the federal court ruling that same sex partners wouldn't be granted the same immigration rights as heterosexual partners even though they may have been validly married in a state that has legalized same-sex marriages.

But, is it possible that my partner's immigration status could make a big difference in the outcome of obtaining his green card through marriage?

I ask this because: On October 2009, my partner's parents received in the mail his "notice of approval" for a US permanant resident visa (green card). However, the interview date is still unknown...the time it takes for this interview to take place can go up to 5 or 7 years.

If his notice of approval for obtaining his green card doesn't change anything, then should he apply for an H1B visa in the meantime? What are the requirements to obtain and/or keep an H1B visa?

I will consult with an immigration attorney before getting married anyway, but I wanted to see what users on here have to say before doing so. Any advice would be greatly appreciated!
 

TheRealCanadian

Volunteer Moderator
I assume your partner was sponsored under FB1, which is the unmarried adult child of a US citizen. When was the I-130 filed?

He's not going to get any immigration benefit out of a same-sex marriage under US law. As far as USCIS is concerned, your marriage will have never happened.

Out of curiosity, where does he live?
 

BigJoe5

Registered Users (C)
The Visa Bulletin tells you when a visa is available in his category and for his country: http://travel.state.gov/visa/bulletin/bulletin_1360.html

As a single adult son of a USC, the filing date of the I-130 is the Priority Date that needs to become "current" on the Visa Bulletin for category FB-1 for Mexico. Currently anyone with a PD earlier than Jan 22, 1993, can apply for a Visa abroad with the State Department (Consulate in Cuidad Juarez) or IF legally in the U.S. file for adjustment with USCIS (form I-485 etc..). Lastly, if the parent filed for him when that parent was still an LPR, they must "upgrade" the petition by supplying their naturalization information to NVC in connection with the approved I-130 to get it in the correct category. It makes a difference in wait time (but not much).

As same-sex marriage is not recognized for U.S. immigration, it should have neither a positive nor negative effect on his visa eligibility.
 

baikal3

Registered Users (C)
Both of his parents have been US citizens since the late '70s, and they've claimed/sponsored him after he was born in Mexico. Although they claimed him long ago, he's still awaiting his visa.

What do you mean by saying that they "claimed" him? Also, was he born before or after his parents became U.S. citizens?
 

nr_c

Registered Users (C)
The I-130 was filed in May 2003. Thank you for your input, we will contact an immigration attorney as well.
 

nr_c

Registered Users (C)
Thank you for the information provided above. However, we are having trouble interpreting the dates for Mexico. If we could get any further explanation of what it means or how to interpret it, it would be greatly appreciated.
 

baikal3

Registered Users (C)
The I-130 was filed in May 2003. Thank you for your input, we will contact an immigration attorney as well.

The March 2011 Visa Bulletin specifies the priority date for Mexico in the 1-st family preference category (which includes unmarried adult children of U.S. citizens) as Feb 1, 1993. This means that only those in this category with approved I-130s whose I-130 was filed prior to Feb 1, 1993 may file for adjustment of status (I-485) or consular processing. People from Mexico in the 1-st family category whose I-130s were filed after Feb 1, 1993 still have to wait for their priority dates to become current. So as of now there is about 20 years waiting time for the priority date to become current. At this rate, even with an approved I-130, your partner will only become eligible to file I-485 around 2033.
 

Jackolantern

Registered Users (C)
The March 2011 Visa Bulletin specifies the priority date for Mexico in the 1-st family preference category (which includes unmarried adult children of U.S. citizens) as Feb 1, 1993. This means that only those in this category with approved I-130s whose I-130 was filed prior to Feb 1, 1993 may file for adjustment of status (I-485) or consular processing.
An approved I-130 is not required to file for adjustment of status. As long as the individual's priority date is current, the I-485 may be filed if they are inside the US and meet the other relevant criteria, even if the I-130 is pending.

At this rate, even with an approved I-130, your partner will only become eligible to file I-485 around 2033.
The I-130 was filed in 2003. So if the 18-year wait time holds, that would be 2021 when they become eligible to file I-485 or get a consular interview.
 
Last edited by a moderator:

Jackolantern

Registered Users (C)
I know this is a bit lengthy, but I have detailed questions.

My same-sex partner and I have been together for 2 years now, and we'd like to get married.

My partner has a B1/B2 visa (I believe that is a business-visitor/tourist visa)
Has your partner been in the US for 2 years with a B1/B2 visa? That kind of visa normally allows a maximum stay of 6 months, followed by a (rarely granted) extension of 6 months. So being in the US for 2 years straight would mean an overstay of a year or more ... which would disqualify (for 10 years) eligibility for a green card.
 

baikal3

Registered Users (C)
The I-130 was filed in 2003. So if the 18-year wait time holds, that would be 2021 when they become eligible to file I-485 or get a consular interview.

Right, that was my bad in terms of math. Still, I have a feeling that it is more realistic for the OP's partner to explore other ways of getting a GC, rather than wait for the priority date to become current for the family first preference category.
 

nr_c

Registered Users (C)
Right, that was my bad in terms of math. Still, I have a feeling that it is more realistic for the OP's partner to explore other ways of getting a GC, rather than wait for the priority date to become current for the family first preference category.

Thank you for your input and interest in the matter. The 10-12 year wait doesn't seem so bad as we are nearing the finishing line. I would appreciate any final remarks or comments on the matter.
 

Jackolantern

Registered Users (C)
Is your partner living inside or outside the US? If inside, legally or illegally? Illegal status would bring disqualification for obtaining a green card through parents, until one has spent 10 years outside the US.
 

Jackolantern

Registered Users (C)
Thank you for your input and interest in the matter. The 10-12 year wait doesn't seem so bad as we are nearing the finishing line. I would appreciate any final remarks or comments on the matter.

The wait is 10-12 years from today. That's not near the finish line!
 

baikal3

Registered Users (C)
Thank you for your input and interest in the matter. The 10-12 year wait doesn't seem so bad as we are nearing the finishing line. I would appreciate any final remarks or comments on the matter.

I agree with Jackolantern: waiting another 10-12 years (assuming the current waiting times hold) does not sound like "nearing the finishing line". A lot can happen in 10-12 years. E.g. the Congress may change immigration laws and make it harder to get green cards in family categories, for example by reducing quotas - that could make the 10-12 years wait into something longer (even the current Congress is very anti-immigrant and they may well do something of the sort).

Plus you did not clarify if your partner's visa status is currently valid or if there is already an overstay. Visa overstays can trigger various automatic bars (3 year, 10 year, etc) from re-entry and also from adjustment of status. If that happens, your partner may be ineligible for adjustment of status even by the time the priority date for his I-130 becomes current.

I would suggest that you do get legally married now in one of the states where it is possible. It seems unlikely that the Congress will relax the immigration laws any time soon. But it does seem possible that DOMA may be invalidated by the courts. There are currently several federal lawsuits against DOMA working their way up the court system. The Obama administration is still defending DOMA in court (although it is not very clear why), but they may change their mind and in any event the courts might rule DOMA unconstitutional anyway. If that happens, your partner may become eligible for a GC as a spouse of a U.S. citizen and he would not be subject to a quota then.
 

Al Southner

Registered Users (C)
The I-130 was filed in May 2003. Thank you for your input, we will contact an immigration attorney as well.

USCIS doesn't recognize same-sex marriages, so you can't sponsor him. I don't envision such a recognition for the next 20 years or so. I am not sure what is the purpose of using an immigration lawyer here? To help you sponsor him or follow-up on the petition his parents filed for him? Remember, without a legal valid status in the US, no immigration benefit can be obtained, unless heterosexual couple and one the petitioner is a US citizen.
 

Jackolantern

Registered Users (C)
At the top of this thread you mentioned he has a B1/B2 visa. That doesn't allow "living" in the US; it only allows visits for up to 6 months. After the 6 months, immigration officials normally will require the B1/B2 visa holder to stay outside the US for 3-6 months before being allowed to reenter. So something doesn't add up if you says he is in the US legally, being able to enter the US over and over and over for another 6 months every time. Maybe he's just lucky to get away with it because the systems at the particular border crossing point aren't furnished with his entry/exit information. Or does he also have another visa, like H2A?
 

Stanley Hermosillo

Registered Users (C)
Unfortunately, the US is 30 years behind other industrialized countries when it comes to gay rights, so no, you can't get a spouse visa via any kind of same-sex partnership :(
 

JMG1010

Registered Users (C)
Can somebody comment on the fact that the partner's parents have been citizens since the 70's? depending on the specifics, the OP's partner may be a citizen already.
 
Top