US Citizen and Lawful Permanent Resident same sex couples married to foreign nationals are now eligible to file Immigration applications on behalf of their same sex spouse after the recent Supreme Court decision holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional.
Section 3 of the Defense of Marriage Act states: “The word‘ marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
Secretary of Homeland Security Janet Napolitano announced on July 1, 2013, that effective Immediately, U.S. Citizenship and Immigration Services (USCIS) will begin accepting and reviewing immigration applications filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”
Accordingly, same sex marriage is no longer a disqualification from Immigration benefits.
Same sex couples married to American Citizens or Lawful Permanent resident are now eligible for family based Immigrant Visa and adjustment of status.
Upon approval, the foreign spouse will be granted Lawful Permanent resident status (Green Card). However the applications will be adjudicated according to applicable immigration law.
In determining the validity of the marriage , the law of the place of marriage celebration controls. If the law is complied with and the marriage is recognized, then the marriage is deemed to be valid for immigration purposes. Any prior marriage, of either party, must be legally terminated prior to the marriage.
However, marriages considered to be void under State law as contrary to public policy, such as polygamous or incestuous marriages, or which Federal law determines does not meet the Federal definition of a marriage, cannot be recognized for immigration purposes even if the marriage is legal in the place of marriage celebration.
USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes subject to the above exceptions. Federal immigration agencies have also historically considered the law of the state of residence in addition to the law of the state of celebration of the marriage.
The secretary in her announcement indicated, that same sex couples married in a state where such marriages are recognized and valid will be eligible for Immigration benefits even though they live in a state that does not recognize same sex marriage.
The NY times recently reported USCIS approval of a green card application based on same sex marriage that took place in New York State but couples resides in Florida which does not recognize same sex marriage.
USCIS will likely provide further guidance in the future as questions will likely arise as to applicants ability to reopen previously denied applications.