Same-sex couples are entitled to all of the same rights and privileges as opposite-sex couples under immigration law. However, they may face special challenges when seeking a provisional waiver to excuse the alien spouse's unlawful presence in the United States. With some important exceptions, aliens who entered the United States without inspection must apply for permanent residency through an interview in their home country. These people will face a 3- or 10-year bar against returning once departed unless they are granted a waiver to excuse the time spent in the U.S. unlawfully. The provisional waiver is a remedy that can be applied for before departure and is based on extreme hardship to the U.S. spouse.

This hardship can take many forms, but for many victorious couples the core of their argument lies in the children they are raising together. Couples with children are also more likely to earn income unequally, and a stay-at-home parent has a powerful argument in the loss of income that would attend the breadwinner's removal. Statistically, a same-sex couple is less likely to have children and therefore less likely to have these arguments available.

Also, opposite-sex couples routinely invoke the support of family members and the strength of their ties. Tragically, many LGBT individuals have family members who reject their marriage or have even shunned them altogether. 

Same-sex couples must focus their attention on their own unique characteristics. Does the U.S. spouse have a history of abuse, bullying, social isolation, family rejection? That can be an extreme hardship that would be exacerbated by the thwarting of a love that has been criminalized and vilified for centuries. Is the home country of the foreign spouse dangerous for LGBT persons? Will it recognize their marriage? The progress in LGBT rights in Mexico and other Latin American countries has had the unfortunate side effect of weakening such arguments, but advocates must make clear that rights in the legislature and courtroom do not always translate to rights or even physical safety out on the streets.

Yes, the provisional waiver is available to same-sex couples, but the strategy must be tailored to a slightly different fit.

A finding of marriage fraud is one of the worst things that can happen to a would-be green card applicant. Under section 204(c) of the Immigration and Nationality Act, USCIS will not approve a petition for an alien who obtain or tried to obtain residency through a marriage that was "entered into for the purpose of evading immigration laws" or even one who "attempted or conspired to enter into a marriage" for such purpose. Note that just the mere act of entering into the marriage creates the bar, even if no application is made! Also note that the bar is against all family-based petitions, not just those based on marriage. That means, for example, that an adult son would be barred from petitioning his father if the father has a previous finding of marriage fraud.

Not all hope is lost, however. First, this bar only applies where a specific finding of fraud has been made. Sometimes USCIS expresses that it will deny a petition because it isn't convinced about the marriage but stops short of expressly stating that it finds fraud to have occurred.

Secondly, the law requires USCIS to at least accept future applications and look at the fraud question afresh each time. In other words, they cannot simply point to the past finding of fraud and deny the new petition. The new officer has to make his or her own finding of fraud -- although that is very often just what they do.

Finally, there is a waiver available under section 237(a)(1)(H) of the Immigration and INA that can preserve an already granted green card despite the fraud, though this is difficult to win and can only be sought by someone who is already in removal proceedings.

It should go without saying that anyone with a marriage fraud finding needs the immediate help of an experienced immigration attorney before any steps are taken to preserve, replace, or obtain their green card.

 Anyone filing an immigration petition for a family member is required to  file an affidavit of support, pledging to reimburse the government if the intending immigrant(s) should receive certain forms of public assistance. If the petitioner cannot demonstrate the sufficient level of income, which for most people is defined as at least 125 percent of the current Federal poverty guideline for the household size, the help of a joint sponsor will have to be gained. This joint sponsor will complete a separate affidavit of support and must meet the income requirement on his or her own.

Many people have difficulty finding such a sponsor. Here are a few tips that can help.

​Although the joint sponsor can't combine income with the petitioner, the joint sponsor can combine income with other members of his or her household as long as they have the same principal residence as and promise to financially support the intending immigrant(s). These additional household members will use Form I-864A.

If the income level is still insufficient, the sponsor can count his/her personal assets and/or the assets of additional household members as described above. Assets are counted such that every $5 of assets counts as $1 of income. For example, if income were short of the minimum requirement by $100, it would take $500 to make up the difference. These assets must be reasonably available to support the sponsored immigrant(s), meaning that they could be converted to cash within one year without undue harm to the sponsor or his or her family members. An attorney can help you decide which kinds of assets would qualify.  (For a spouse or child of a U.S. citizen, it's every $3 of assets for $1 of income).

Note that these methods -- counting income of other household members and using assets -- work for the petitioner as well. The petitioner can even use the assets of the intending immigrant(s) under certain circumstances even if the intending immigrant(s) income might not be countable (see below). So maybe the joint sponsor won't even be necessary.

If multiple people are immigrating through the same petition, each immigrant can rely on a different joint sponsor. However, each joint sponsor must qualify independently. They cannot combine their incomes unless, as described above, the joint sponsors are members of the same household.

**Remember, though, that the income of the intending immigrant(s) can never be used to meet these requirements unless it comes from a lawful source AND it can be established that it will continue to come from that source after immigration. Also, the intending immigrant would have to be currently living in your residence unless it is the petitioner's spouse, in which case the current residence would not matter.

These are general remarks only. Check with an immigration attorney for help specific to your case.