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USCIS Update on Immigration Application for Same-Sex Couples

  • By: Immigration Attorney Osas Iyamu
  • Published: July 26, 2013
same-sex

USCIS, today published additional frequently asked questions on immigration application based on same-sex marriages. This is a follow-up on its recent announcement of accepting and adjudicating same-sex Immigration applications in the same manner as opposite-sex couples in compliance with the recent supreme court decision declaring section 3 of DOMA unconstitutional.

Below are the New Frequently Asked Questions published today.

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). USCIS will determine your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant, according to applicable immigration law. They will not automatically deny it based on the same-sex nature of your marriage.

Q2. I am a U.S. citizen, and I am engaged to marry a foreign national of the same sex. Can I file a fiancé or fiancée petition for him or her?

A2: Yes. You may file a Form I-129F. Your fiancé may enter the United States for marriage in a same-sex engagement. This applies as long as they meet all other immigration requirements.

Q3: My spouse and I 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?

A3: 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 has some limited exceptions. Federal immigration agencies have historically considered both the law of the state of residence and the law of the state where the marriage was celebrated. Whether those exceptions apply may depend on individual fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.

Q4. Do I have to wait until USCIS issues new regulations, guidance or forms to apply for benefits based upon the Supreme Court decision in Windsor?

A4: No. You may apply right away for benefits for which you believe you are eligible.

Q5: My Form I-130, or other petition or application, was previously denied solely because of DOMA. What should I do?

Reopening DOMA-Affected Petitions

A5: USCIS will reopen those petitions or applications that were denied solely because of DOMA section 3. If we know of such a case or someone brings it to our attention, USCIS will reconsider its prior decision. USCIS will also reopen associated applications if the denial resulted from the Form I-130 denial, such as concurrently filed Forms I-485.

They will make a concerted effort to identify denials of I-130 petitions that occurred on the basis of DOMA section 3 after February 23, 2011. Additionally, USCIS will notify you (the petitioner) at your last known address of the reopening and request updated information in support of your petition. 

To alert USCIS of an I-130 petition that you believe falls within this category, USCIS recommends that you send an e-mail from an account that can receive replies to USCIS at USCIS-626@uscis.dhs.gov stating that you have a pending petition. USCIS will reply to that message with follow-up questions as necessary to update your petition for processing. DHS has sought to track DOMA denials that occurred after the President stopped defending Section 3 on February 23, 2011. However, please alert USCIS if you believe your application falls within this category to ensure DHS is aware of your denial.

Notifying USCIS and the March 31, 2014 Deadline

You must notify USCIS by March 31, 2014, for denials of I-130 petitions that occurred before February 23, 2011. USCIS will act on its own to reopen your I-130 petition after you provide this notification. Send an email to USCIS at USCIS-626@uscis.dhs.gov to notify them. In the email, mention that you believe your petition was denied based on DOMA section 3.

Once USCIS reopens your I-130 petition, they will reconsider it. They will evaluate it without regard to DOMA section 3, using both previously submitted and new information.

USCIS will also concurrently reopen associated applications as necessary. They will do this if those applications were denied due to the denial of the I-130 petition, such as concurrently filed Form I-485 applications.

Employment Authorization and Biometric Information

If your work authorization was denied or revoked based on the denial of Form I-485, it will be reconsidered. A new Employment Authorization Document will be issued, to the extent necessary. If a decision cannot be rendered immediately on a reopened adjustment of status application, USCIS will either:

(1) Immediately process any pending or denied application for employment authorization or

(2) Reopen and approve any previously revoked application for employment authorization. USCIS will produce a new Employment Authorization Document if they have already obtained the applicant’s biometric information at an Application Support Center (ASC). They will issue the document accordingly. USCIS will produce the new Employment Authorization Document (EAD) accordingly. They will deliver the EAD without any further action from the applicant.

If USCIS has not yet obtained the required biometric information, they will schedule the applicant. The applicant will then be scheduled for an ASC appointment.

Reopening Other Types of Petitions

If another type of petition or application (other than an I-130) was denied based solely on DOMA section 3, notify USCIS. You must notify USCIS by March 31, 2014. You can do this by sending an email to USCIS at USCIS-626@uscis.dhs.gov as directed above. USCIS will promptly consider whether reopening that petition or application is appropriate under the law and the circumstances.

USCIS will not require you to pay a fee to request the reopening of your petition or application under this procedure. In the alternative to this procedure, you may file a new petition or application to the extent provided by law and according to the form instructions including payment of applicable fees as directed.

Q6: What about immigration benefits other than for immediate relatives, family-preference immigrants, and fiancés or fiancées? In cases where immigration laws condition the benefit on the existence of a “marriage,” will same-sex marriages qualify? Will same-sex marriages also qualify as marriages for the purpose of spousal benefits?

A6: Yes. Under the U.S. immigration laws, eligibility for a wide range of benefits depends on the meanings of the terms “marriage” or “spouse.” Examples include (but are not limited to) an alien who seeks to qualify as a spouse accompanying or following to join a family-sponsored immigrant, an employment-based immigrant, certain subcategories of nonimmigrants, or an alien who has been granted refugee status or asylum. In all of these cases, a same-sex marriage will be treated exactly the same as an opposite-sex marriage.

Q7: If I am seeking admission under a program that requires me to be a “child,” “son or daughter,” “parent,” or “brother or sister,” could a same-sex marriage affect my eligibility? Could this affect my status as a relative of a U.S. citizen or lawful permanent resident?

A7: There are some situations where an individual’s own marriage, or that of their parents, can have an impact. This can determine if the individual qualifies as a “child,” “son or daughter,” or “parent.” It also affects whether they qualify as a “brother or sister” of a U.S. citizen or lawful permanent resident. USCIS will treat same-sex marriages exactly the same as opposite-sex marriages in these cases.

Q8: Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization?

A8: Yes. As a general matter, naturalization requires five years of residence in the United States following admission as a lawful permanent resident. But, according to the immigration laws, naturalization is available after a required residence period of three years, if during that three year period you have been living in “marital union” with a U.S. citizen “spouse” and your spouse has been a United States citizen.
USCIS will treat same-sex marriages exactly the same as opposite-sex marriages for this purpose.

Q9. I know that the immigration laws allow discretionary waivers of certain inadmissibility grounds under certain circumstances. For some waivers, the person must be the “spouse” or a family member of a U.S. citizen or lawful permanent resident. If the family relationship depends on whether the individual or their parents meet the definition of “spouse,” same-sex marriages will count.

A9: Yes. Whenever immigration laws condition waiver eligibility on the existence of a marriage, USCIS will treat same-sex marriages equally. USCIS will treat same-sex marriages exactly the same as opposite-sex marriages when determining spousal status.

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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.

Osas Iyamu

Distance Is No Barrier, Call Us Now!
(800) 974-6480
(352) 237-2403