Immediately after the landmark Supreme Court ruling on June 26, 2013, the United States immigration authorities have started working to eliminate discrimination against same-sex married couples in the implementation of United States immigration laws.
On July 2, 2013, the Secretary of Homeland Security Janet Napolitano issued a statement:
“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”
Frequently Asked Questions
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.
Although gay and lesbian foreign nationals are now eligible for permanent residency based on their marriages to U.S. citizens of the same gender, they are subject to the same requirements as heterosexual married couples. Importantly, same-sex spouses must prove “good faith” marriage with clear and convincing evidence.
In addition, the DOMA ruling may affect visa processing at U.S. embassies abroad. The United States Secretary of State John Kerry issued a statement:
“The Department of State is working with the Department of Justice to review all relevant federal statutes and regulations that affect visa processing and immigration benefits.
We recognize the significance of this decision for affected families, and we are working to interpret the decision and implement policy and procedural changes as soon as possible.”
Attorneys at I.S. Law Firm have helped many U.S. citizens and permanent residents bring their spouses to the United States. If you are in a bi-national same-sex marriage and are interested in sponsoring your spouse for immigration in the United States, please contact us at 1-703-527-1779 or via e-mail: [email protected].
