The Supreme Court case United States v. Windsor (2013) ruled that the federal government cannot discriminate against same-sex couples. Obergefell v. Hodges (2015) ruled that the US Constitution protected gay marriage, thus making it legal in all 50 states. In the eyes of the law, your marriage is just as valid as a heterosexual one. US Citizenship and Immigration Services (USCIS) must treat gay couples who are legally married the same as straight couples. Therefore, USCIS must grant green cards to homosexual couples with lawful marriages. However, gay couples may face additional obstacles in being deemed valid.
The first step for a couple applying for a marriage-based green card is filling out an I-485 with the proper supporting documentation. A significant difficulty that gay couples face during this step in acquiring a marriage-based green card is that their nuptials must be legal in the country where it was performed. Additionally, applicants cannot be in a civil union, they must be legally wed. Same-sex marriages are legal in 38 countries (as of September 2025):
Andorra, Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Denmark, Ecuador, Estonia, Finland, France, Germany, Greece, Iceland, Ireland, Liechtenstein, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, Thailand, the United Kingdom, the United States of America and Uruguay.
If your marriage was performed outside these countries, USCIS will likely deny your application because of invalid documentary evidence. However, you will likely be able to apply for a fiancé visa. A fiancé visa gives the future spouse of a US citizen permission to travel to the United States and remain there for up to 90 days. If the couple does not get married within 90 days, the non-US citizen must leave the country. Learn more about fiancé visas here (https://gmrodriguezlaw.com/how-to-complete-the-i-129f-fiance-visa-petition/).
Another option would be to travel to a neighboring country that recognizes same-sex marriage to be wed. USCIS will recognize gay marriages if they are legal in the “place of celebration,” regardless of the rule of law in the applicant’s home country.
After documentation is submitted, biometrics must be completed, subsequently applicants must undergo an interview to attest to the marriage’s validity. These interviews are used to determine if the applicants’ relationship is fraudulent. The questions asked during the interview are up to officer discretion. The officer is also ultimately responsible for whether a couple is approved or not. Homosexual couples may face more intense scrutiny during marriage interviews, especially if one or both have previously been in a heterosexual relationship. Learn more about preparing for a USCIS marriage-based interview here:
or here (https://gmrodriguezlaw.com/how-to-apply-for-a-green-card-through-a-same-sex-marriage/).
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