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Adjustment of Status Same Sex Marriage

A couple who had been together in a committed relationship for over 10 years, finally decided to get married in New York, following the decision to repeal the Defense of Marriage Act (DOMA) on June 26, 2013. One of the men was a native and citizen of Peru who had applied for political asylum in 1995. When that case was denied, he accepted an order of voluntary departure and left the United States. Several years later, he applied for a visitor’s visa to return to the U.S. That visa was granted and he was able to lawfully re-enter the country. Once he arrived, he met his partner, a United States citizen, and decided to overstay his visa. He lived in unlawful status for many years. Since they were not able to lawfully marry in Florida, in 2008 the couple registered their domestic relationship with Broward County, Florida. When they heard the news that DOMA had been repealed they visited our office in July and we were able to immediately file an I-130 petition for alien relative, simultaneously with and I-485, application to adjust status to lawful permanent resident. The issue in the case was that our client had re-entered, albeit lawfully, before waiting the requisite ten years following an order of voluntary departure. We held off on filing a waiver before the interview.

RESULT: Adjustment of Status granted at USCIS. The officer agreed with our argument that our client had lawfully entered, even though he had accepted an order of voluntary departure in the past and did not require a hardship waiver. Due to the length of their relationship, the couple was not separated and was treated with respect and deference at the interview. The officer approved the case on the spot, although it was a “conditional” grant as the couple had not been lawfully married for over two years. We argued that marriage was not available for them but they had registered their relationship, in the form of a Civil Union in 2008. The officer agreed that the argument was interesting and promised to further research its viability. Ultimately the client received his conditional green card within a week of the interview.