Marriage-based immigration applications for same-sex couples

Gay and lesbian marriages are now recognized by USCIS as valid marriages for the purposes of filing immigration petitions as the Supreme Court of the United States held that Section 3 of the Defense of Marriage Act is unconstitutional.  These couples can now file I-130 and I-485 petitions based on their marriages and also file fiance petitions for their loved ones abroad.  The service is also reopening petitions that have been denied since 2010, and if you have a recently denied same-sex case that has not been reopened you should be able to request a reopening of that case.

Secretary of Homeland Security Janet Napolitano issued this statement about the historic Supreme Court decision:

“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.”

USCIS posted these 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.

If you have any questions about this new change in the law feel free to contact me.