Immigration Benefits for Same-Sex Couples

In United States v. Windsor, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) as an unconstitutional violation of the Fifth Amendment. Section 3 of DOMA limited the definition of marriage to opposite-sex unions for couples seeking federal benefits.  As a result of the Court’s decision, U.S. citizens and lawful permanent residents can now sponsor qualified same-sex fiancés, spouses and their spouses’ children for immigration benefits.

At a recent American Immigration Lawyers Association conference in San Francisco, USCIS head Alejandro Mayorkas said they have kept a record of all I-130 petitions that were previously denied for same-sex couples.  He also said that the USCIS will revisit these cases for further adjudication, which is great news!

This past week, the Department of Homeland Security issued a Frequently Asked Questions on immigration benefits for same-sex relationships.  We encourage you read this carefully and consult with your immigration attorney if you are a same-sex couple seeking immigration benefits post-DOMA.

Q1:  I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national.  Can I now sponsor my spouse for a family-based immigrant visa?

A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.

Q2:  My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not.  Can I file an immigrant visa petition for my spouse?

A2: Yes, you can file the petition.  In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.

We will continue to keep you posted on the latest developments at www.bashyamspiro.com.