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 spouses, and the word ‘spouse’ refers only to a person of another sex who is a partner.”
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 Residents are now eligible for family-based Immigrant Visas. They are also eligible for adjustment of status.
Upon approval, USCIS will grant Lawful Permanent Resident status (Green Card) to the foreign spouse. However, they will adjudicate the applications according to applicable immigration law.
In determining the validity of the union, the law of the place of marriage celebration controls. If the parties comply with the law and recognize the union, immigration authorities deem the marriage valid for immigration purposes. Either party must legally terminate any prior union before the marriage.
State law considers marriages void if they contradict public policy, such as polygamous or incestuous marriages. Federal law also voids marriages if they do not meet the federal definition of marriage. Immigration authorities cannot recognize these marriages for immigration purposes. This applies even if the union is legal in the place of marriage celebration.
USCIS looks to the law of the place where the marriage took place. They do this when determining whether it is valid for immigration law purposes, subject to the above exceptions. Federal immigration agencies have historically considered the law of the state of residence. They also consider the law of the state of celebration of the union.
The secretary announced that same-sex couples married in a state where such marriages are valid can receive immigration benefits. This applies even if they live in a state that does not recognize same-sex unions.
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.
Disclaimer: This blog post is for informational purposes only and should not be construed as legal advice. Always consult with a qualified immigration attorney regarding your specific situation.