Defense of Marriage No More
With the recent repeal of the Defense of Marriage Act, which allowed the federal government for several years to discriminate against same sex couples, same sex couples who are legally married in states that allow same sex marriages now have the same immigration rights and benefits as straight couples.
This means that a U.S. citizen or lawful permanent resident who is married to a foreign citizen of the same sex, or who is engaged to be married to a foreign citizen of the same sex, can sponsor the foreign citizen spouse / fiance(e) for the purpose of obtaining a marriage/engagement visa and lawful permanent resident (green card) status. A same sex marriage performed outside the United States, so long as it does not offend American public policy, will also be recognized by the federal government if the couple moves to a same sex marriage-friendly state. A foreign marriage to a person who has not reached the age of majority for the United States may be considered “offensive to American public policy.”
Only for Some States
Unfortunately, these benefits are only extended to same sex couples in states that recognize same sex marriages. In other words, if a same sex couple is married in a state that recognizes the marriage, but moves to a state that doesn’t, the federal government may not extend these benefits.
As of the Supreme Court’s most recent decision on the Defense of Marriage Act, it is now in the best interests of binational, same sex couples to move to a state that recognizes same sex marriages in order to be able to take full advantage of the federal benefits and immigration rights which a legally recognized marriage can allow.
Advice for Same Sex, Binational Couples
Same sex, binational couples whose marriages are now recognized by federal law are encouraged to make an appointment with a U.S. immigration attorney as soon as possible to discuss the possibility of helping a foreign citizen spouse obtain a U.S. visa or green card.
Because this is a federal issue, and since most decisions are made by evaluating applications and paperwork, it is generally not even necessary for the attorney to be in the same state as the couple. While they are allowed by law to apply for a visa or green card without the help of a fiancé visa attorney, this option is not usually advised because of how confusing immigration applications can be. Failure to fill out an application properly, or failure to include the necessary documentation with an application, can add a substantial amount of time to the entire process – time which both spouses are sure to prefer not to waste.
Depending on whether it is an engagement visa or a green card that the foreign citizen spouse / fiance(e) is trying to obtain, different requirements will have to be met. If applying for a fiance(e) visa, then a marriage is required to take place within 90 days, and the process for applying is different depending on whether or not the foreign citizen is in the United States at the time of application. If applying for a green card, the foreign citizen spouse will have to show proof of continuous U.S. residency.
For more information, speak to our fiancé visa attorneys.