LGBT clients who have questions about a green card through marriage often ask about the process for someone who illegally entered the U.S., or has HIV, or is not ‘out’ to family, or was previously in an opposite-sex marriage.
Board Certified Immigration Law Specialist Lynn Olinger, an immigration attorney in Dallas serving clients throughout the U.S. and around the world, has provided immigration services to the LGBT community for more than 15 years and will be delighted to assist you through the immigration process.
QUESTION. My boyfriend came in illegally years ago and has been here ever since. When we marry, can i get him his green card?
Short Answer. It depends.
Longer Answer. If that’s the only immigration violation that makes him ‘inadmissible,’ then in most cases it’s going to be a 3-part process, including the need to apply for and receive a waiver (government forgiveness) for the illegal entry and unlawful time in the U.S. Also, in most cases, after he gets the waiver, he’ll have to go back to his home country (typically for 5 – 10 days) to get his visa to come back in. (The process is known as ‘consular processing.’) The timing of these steps is something you’ll want to discuss with an immigration lawyer. If there were several illegal entries, depending on when they happened and for how long, a waiver might not be able to fix the problem. This is a tricky but very important immigration consideration. It’s critical to consult with a qualified immigration lawyer to discuss your specific facts.
QUESTION. My partner and I got married. I want to help him with the green card process. He is HIV+ (or we both are). Does that matter?
Short Answer. No.
Longer Answer #1. No. HIV/AIDS is no longer a reason for denying anyone a green card (and hasn’t been since 2010 when that discriminatory law ended). All ‘intending immigrants’ (people applying to become a permanent resident, i.e. get a ‘green card’) must have an immigration physical to ensure vaccinations are current and to test for certain ‘communicable diseases of public health significance,’ including tuberculosis (TB). Several factors influence the choice of TB test, and while most people will get the quick Tuberculin Skin Test, for someone known to be HIV+ and ‘consular processing’ (see Q&A above), the required test may mean having to stay a few weeks longer in the home country before coming to the U.S.
The HIV antibody test is no longer part of the immigration medical exam. You may not have to volunteer information about your HIV status, but you must be honest with the examining doctor.
Longer Answer #2. No. And there are situations where HIV infection can and should be used to your immigration advantage. For green-card applicants who need a waiver of an immigration violation and must show ‘extreme hardship’ to their spouse if they don’t get the waiver, we use the fact of HIV or AIDS (with the applicant’s permission, of course) to show the government that the infection must be carefully monitored and treated. Having to live in another country can be an extreme hardship where there is inadequate HIV treatment, or where there is outright prejudice, discrimination or persecution against someone with the virus.
Question. My partner and I are planning to get married. He is still very closeted, especially to his family and at his work. Will this information get out?
Short Answer. No.
Longer Answer #1. No. USCIS virtually never contacts anyone’s family, friends or place of business. The only exception is where USCIS is investigating a case of marriage fraud. (And a good immigration lawyer is going to alert you if the circumstance of your relationship ‘looks like’ fraud to USCIS.)
Longer Answer #2. No. But USCIS will mail you application receipts. If there is someone at your home that you don’t want seeing/opening that mail, tell your lawyer, who can make other arrangements.
Question. I was once before married to someone of the opposite sex. Now I am marrying (or already married to) someone of the same sex. Is immigration going to be suspicious? Is that a problem?
Short Answer. No.
Longer Answer #1. No. For anyone applying for a green card through marriage who has been married before, we must show that the previous marriage has ended (by death, divorce or annulment). A prior marriage should be no problem so long as proof is submitted that it lawfully ended.
Longer Answer #2. If immigration papers were filed in the previous marriage, that is something you definitely want to discuss with your current immigration lawyer. However where there was no immigration application before, USCIS is generally unconcerned with who you married in the past.