June 26, 2013 was a remarkable moment in history for same-sex couples. The U.S. Supreme Court in United States v. Windsor, struck down as unconstitutional Section 3 of the Defense of Marriage Act (DOMA), the law barring the federal government from recognizing same-sex marriage legalized by the states. If the marriage is valid under the law of the state where it was celebrated (also referred to as the place of celebration rule), then DOMA is no longer a barrier to recognizing same-sex couples under the Immigration and Nationality Act (INA).
What does this exactly mean for same-sex couples who wish to seek immigration benefits for their same-sex spouse and dependents? Below is the most recent guidance from the three main immigration agencies – U.S. Citizenship & Immigration Services (USCIS), Department of State (DOS), and Customs and Border Protection (CBP).
As of the date of the Supreme Court Decision, the USCIS will review all 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. There is no need to wait for USCIS to issue new regulations, guidance, or forms to apply for an immigration benefit. Applications can be filed immediately.
Filing an immigrant visa petition: The U.S. citizen (USC) or lawful permanent resident (LPR) spouse may file an immigrant visa petition (Form I-130) and any related applications to sponsor his or her spouse for a marriage-based immigrant visa for U.S. permanent resident (green card) status. The USCIS will recognize the law of the state where the marriage was celebrated, regardless of where the couple now lives or will live. Similarly, a USC engaged to a foreign national of the same sex may petition by filing the Form I-129F for their fiancé/fiancée to enter the U.S. for marriage.
Eligibility for naturalization: The same U.S. residence requirement (three years) that applies to opposite-sex spouses applies now to same-sex spouses who wish to acquire U.S. citizenship.
Reopening a previously denied petition on behalf of a spouse or fiancé/fiancée: USCIS will reopen and reconsider petitions or applications that were denied solely because of DOMA Section 3 as well as reopen all associated applications such as a concurrent adjustment of status application. USCIS will make a concerted effort to identify I-130 denials made after February 23, 2011 based on DOMA and notify the petitioner at the last known address on file and request updated information in support of the petition.
Obligation of some to contact the USCIS: For an I-130 petition that was denied prior to February 23, 2011, the USC petitioner must notify USCIS by March 31, 2014 in order for USCIS to reopen and reconsider the I-130 petition. The USCIS requests that an e-mail be sent to USCISfirstname.lastname@example.org.
Derivative visas for same-sex couples: The DOS has issued guidance to all U.S. embassies and consulates abroad to adjudicate visa applications that are based on a same-sex marriage the same way that applications for opposite-sex marriages are processed. The same-sex spouse of a visa applicant coming to the U.S. for any purpose is now eligible for a derivative visa to accompany his/her spouse. Children or stepchildren acquired through same-sex marriage are also eligible for the derivative visa status.
Caution: It is important to note that the client applicant appearing for a visa application interview should be aware that in foreign countries where same-sex marriage is not recognized, scrutiny by consulate officers can be expected. While the DOS has issued instructions to all U.S. embassies and consulate officers on how to respond to public and media inquiries, attorneys should brief client applicants on what they could expect at the interview.
CBP is the only DHS agency that has not issued any official guidance to the field on how to apply immigration regulations that permit admission into the U.S. of same-sex couples as dependent nonimmigrants at the port-of-entry.
Canadian nationals: From a practical standpoint, an issue might arise at the port-of-entry for nationals of Canada who normally do not require a visa to enter the U.S. When applying for a derivative visa status at the port-of-entry, the CBP officer would need to determine whether the same-sex marriage was legal. The couple would need to present a valid marriage certification and proof that the marriage is legally recognized in the jurisdiction where it occurred.
While the spouse should be admitted with the proof required, it is recommended that, until further guidance is issued, the foreign national’s attorney contact in advance the CBP at the port-of-entry to avoid any unnecessary delays.
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The end of DOMA has had a significant positive impact on immigration for same-sex couples and their dependents. The same sex-spouse coming to the U.S. for any purpose such as work, study, international exchange, or as a legal immigrant are now equally entitled to the same immigration benefits as opposite-sex couples.
Trow & Rahal is more than willing to assist you and your spouse in your immigration needs in the post-DOMA process. We can make the immigration process as easy and uncomplicated as possible for you.
Posted by: Clarissa Upadhyay, Associate Attorney