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FAQs on Same-Sex Marriage & Immigration

September 19, 2013

Q: What did the Supreme Court decision in Windsor say?
A: The Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), which defines the term “marriage” as a union between a man and a woman for purposes of all federal statutes and federal agency regulations and rulings.  Since immigration law is federal law, same-sex couples were denied immigration benefits under DOMA.

Q: Who does Windsor affect?
A: The decision has implications for a wide range of people interested in applying for immigration benefits. A US citizen or legal permanent resident may apply for an immigrant visa for their same-sex spouse, or a fiancé/fiancée visa for their intended spouse and for certain children of their same-sex spouse. A foreign national’s spouse may apply for a derivative non-immigrant visa to accompany their spouse who is on a non-immigrant visa (this includes several types of visas, including H-1Bs, F-1s, J-1s, L-1s, and more). For foreign nationals applying for permanent residence through their employer, the applicant’s same-sex spouse and certain children can be included on the primary applicant’s petition.  For diversity lottery winners, the same-sex spouse can be included on the application.

Q: When will USCIS and US embassies and consulates begin accepting applications for same-sex spouses, other family members, and fiancés/fiancées?
A: USCIS and US embassies and consulates have already begun accepting these applications.  Some approvals have been reported.  Importantly, a person applying for an immigration benefit must be eligible for that benefit.  Even if the person has a valid marriage to a same-sex spouse, they may be ineligible for other reasons.  We recommend setting up a consultation with an attorney before filing your case.

Q: I am engaged to a foreign national of the same sex residing overseas.  Can I apply for them to come to the US?
A: A US Citizen engaged to be married to a foreign national of the same sex may apply for a fiancé/fiancée visa.  It does not matter if your foreign fiancé/fiancée resides in a country that does not allow same-sex marriage.  Once in the US, the marriage must take place in a state that recognizes same sex marriage.

Q:  My employer has started the permanent residence (green card) process for me.  Can my same-sex spouse be included?
A:  Your spouse can be added to your I-140.  If your adjustment of status application has not yet been filed, you can add your same-sex spouse when filing the I-485.  If your I-485 is already filed and pending with the government, you may be able to file an I-485 for your spouse, or your spouse can process abroad through a US embassy or consulate.

Q:  I am a U.S. citizen or legal permanent resident married to my same-sex spouse who is a foreign national. Do I have to live in a state that recognizes same-sex marriage in order to file an immigrant petition for my spouse?
A:  No, you are not required to live in a state that recognizes same-sex marriage to apply for your spouse.  Generally, the law of the place where the marriage took place determines whether the marriage is legally valid for immigration purposes.  If you entered into a valid marriage in a state or country that recognizes same-sex marriage, your marriage is generally valid for immigration purposes regardless of where you live.  Note that some states may have a residence requirement or waiting period before you can marry in that state.

Q: I am a US citizen or legal permanent resident.  My same-sex spouse lives abroad.  How can I apply for them to come to the US?
A:  Same sex spouses may process through the US consult or embassy where they live.  The US citizen or legal permanent resident first files an I-130 petition with USCIS.  The application, once approved, is then sent to the local embassy or consulate, which conducts an interview with the foreign spouse.  After approval, the foreign spouse enters the US and receives their green card.

Q: I previously applied for my same sex spouse and received a denial due to the DOMA restrictions.
A: USCIS is working on reopening some cases denied due to DOMA.  You may need to contact USCIS to notify them that your case should be reopened.  Please review the information available at Same Sex Marriage FAQs.

Q.  Can I apply for the children of my same-sex spouse who were born abroad?
A: USC or legal permanent resident spouses may now petition for the biological children of their spouse as step-children. Where the couple planned to have a child together, both parents will probably see themselves as “parents,” rather than “step-parents,” but under the INA, a nonbiological parent who is married to the child’s biological parent is considered a step-parent so long as the marriage took place before the child turned 18.

Q:  Can same-sex partners who have a civil union or domestic partnership apply for marriage-based immigration benefits?
A:  USCIS and the Department of State have not issued guidance related to whether civil unions or domestic partnerships will qualify for the marriage immigration benefits as married couples following the Windsor decision.  As of now, only marriage and not civil unions or domestic partnerships are accepted for the purposes of immigration benefits based on marriage, although certain common law marriages may suffice.  Given the complexity of the issue, it is advised that you consult with an attorney if you have questions about this situation.