DHS Secretary Janet Napolitano has directed 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.”
If you are a U.S. Citizen or Lawful Permanent Resident, and you were lawfully married to a person of the same sex in a jurisdiction that legally recognizes same-sex marriage, then you may file and I-130 Petition to begin the green-card process for your same-sex spouse. USCIS will review your petition and will make a decision using the same procedures and rules that are used to review petitions filed for opposite-sex spouses.
If you and your same-sex spouse were lawfully married in a place that legally recognizes same-sex marriage, but you now live in a state that does not recognize same-sex marriage, USCIS will still review your petition. With very few exceptions, USCIS will look the law of the place where you married, and not to the law of the place where you are currently living, to determine whether your marriage is valid for purposes of immigration law.
Please note that, as with all marriage-based petitions, USCIS will review each petition to determine not only whether the marriage is legally valid, but also to determine the good-faith nature of the marriage. USCIS looks to the circumstances of the marriage relationship, including, but not limited to, issues such as whether the couple live together, share financial burdens and benefits, and have a history of being in communication with one another over time.
If you are considering filing a marriage-based petition, it is a good idea to consult with an immigration attorney in order to have the best chance of success and to avoid problems with the petition.
Today the U.S. Supreme Court decided, in a case called United States v. Windsor, that the federal Defense of Marriage Act (DOMA) is unconstitutional and is therefore invalid.
This means that same-sex couples who are legally married in one of the states or jurisdictions that recognize same-sex marriage will have their marriages recognized by the federal government.
Although we have not yet received an announcement from U.S. Citizenship and Immigration Services (USCIS) about the Supreme Court ruling, it appears likely that same-sex couples who are legally married in the United States will be able to apply for immigration benefits, such as permanent resident (green card) status, based on the marriage.
We hope to receive confirmation soon from USCIS regarding the ability of legally married same-sex couples to apply for immigration benefits.
Janet Napolitano, Secretary of the Department of Homeland Security, applauded the Supreme Court’s decision in United States v. Windsor, holding that the Defense of Marriage Act (DOMA) is unconstitutional. Secretary Napolitano pledged to “implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”