On June 26, 2013, the U.S. Supreme Court found Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. On the immigration front, this means that a U.S. citizen same-sex spouse who is married to a non-citizen may now petition for legal permanent residency for his or her non-citizen spouse.
The U.S. Citizenship and Immigration Service (USCIS) recently clarified several questions about same-sex marriages and immigration benefits:
- Applications for both same-sex spouses and fiance/fiancées may be filed immediately.
- Same-sex marriages will be considered valid if the marriage itself took place in a state (or country) that recognizes same-sex marriages. For example, if a same-sex couple lives in a state that has not yet legalized same-sex marriage (Nebraska, for instance), as long as the marriage occurred in a state that does recognize same-sex marriage (for example, Iowa), USCIS will recognize the marriage for the purposes of immigration.
- Applications for immigration benefits for same-sex couples who filed before the Court’s ruling will be re-opened at no expense to the applicants. If you received a denial of an I-130 or other immigration application solely because USCIS did not recognize your marriage, you should contact CIS by email at USCISfirstname.lastname@example.org by March 31, 2014, to open your case.
Please keep in mind: Just because same-sex marriages are now recognized as legal relationships by USCIS does not mean that all same-sex spouses will qualify for immigration benefits.
As with heterosexual couples, the marriage will be assessed to determine that it was not entered into solely for immigration purposes, and the non-citizen spouse must be otherwise eligible to immigrate. Same-sex couples, as all couples, should consult with an immigration attorney before filing an immigration application.