The marriage will go through the same scrutiny any other marriage does. It is always helpful to have an attorney on your side, especially with new things, but that choice is up to you. Overstay should not be a problem if there are no other obstacles. Good Luck.
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An overstay would be a problem if neither spouse is a US citizen. A case involving a US citizen will take 6-12 months. Whether an attorney is needed depends on whether the couple has any immigration issues, and how well the couple understands what is needed.
J Charles Ferrari
Eng & Nishimura
The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship.
Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.
Here's the general background: the recent Supreme Court's decision in Windsor struck down the Defense of Marriage Act as an unconstitutional violation of the equal protection clause. This decision means that same sex married couples are entitled to the same federal legal rights and privileges as heterosexual couples. In the immigration context, a same sex legal marriage can serve as the basis for an immediate relative immigrant visa petition.
So the legal barrier of DOMA is gone. And if you've been with your partner for ten years and are considering the green card marriage process, then I recommend that you consult with an experienced immigration lawyer. Whether your marriage is gay or straight, It's worth it to have your case thoroughly screened for inadmissibility issues and carefully prepared by a competent experienced immigration attorney.
Good luck. Please come see me in my downtown Boston office you need more help or advice.
I agree with my colleagues that it's best to consult with an immigration attorney. The overstay may not be an issue, but there are a lot of IFs to know for sure. For example, whether the sponsor is a US citizen, whether the foreign national spouse made any departures abroad since the initial legal entry to the US, whether the foreign national spouse has had other contact with immigration authorities, whether the foreign national spouse entered the US on a Visa Waiver Program or as a transit alien or other class of people who are prohibited from adjusting status in the US. We also don't know if there are other legal obstacles in the case, jsut as in any marriage case. Again, consult with an experienced attorney.