Good News for our LGBT Family – The Collapse of DOMA Opens Immigration Opportunities for Same Sex Couples
On June 26, 2013 came the Supreme Court’s 5-4 ruling, in the case of United States v. Windsor, which found Congress exceeded federal authority and violated the constitutional guarantee of equality when it decided to deny federal benefits to same-sex spouses, while continuing to recognize other marriages performed under state laws. Shortly thereafter, on July 1, 2013, Secretary of Homeland Security, Janet Napolitano, issued a FAQ in response to the June 26 ruling, stating that U.S. Citizenship and Immigration Services, aka USCIS, should review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed by opposite-sex spouses.
What Does This Mean for Our LGBT Family, Specifically, Same-Sex Couples Married to a Foreign National?
The fall of DOMA now provides a U.S. citizen or lawful permanent resident married to a same-sex foreign national the ability to sponsor his/her spouse for a family-based immigrant visa. Whereas in the past family-based petitions filed by visa or adjustment of status, were automatically denied because the couple was same-sex, applications will now follow immigration laws and be applied as it has been for heterosexual couples.
This generally applies whether or not you are living in the state where you were married. This is because the USCIS will look to the laws of the state where the marriage took place to determine whether a valid marriage exists. In light of this, a gay couple contemplating marriage should ascertain whether the state in which they intend to marry recognizes same-sex marriage. If the couple’s marriage license is from a state that does NOT recognize gay marriage, it could be detrimental to the sponsorship/visa process.
What are Just Some of the Ways Our LGBT Family Can Benefit?
1. American citizens and green card holders can submit a petition to the USCIS for an International spouse to receive a green card;
2. With a few other conditions met, a green card holder living in the US and married to an American for at least three years can apply for naturalizations;
3. An unmarried U.S. LGBT citizen can use a fiancé visa to sponsor his/her partner to enter the U.S. legally and commence their process to citizenship; and
4. LGBT immigrants who are out of status (stayed beyond their visa allowance and are therefore undocumented) can be petitioned by a spouse.
The best news? Ultimately, three years after obtaining a green card, a couple can become a U.S. Citizen!
Contact us to learn more about how to protect and keep your family together in light of the fall of DOMA.
Important: The information provided herein is for informational purposes only. This information does not constitute legal advice, nor should it take the place of independent legal counsel. As immigration laws are complex and ever changing, we recommend that you consult counsel before taking action in any particular case