Secretary of Homeland Security Janet Napolitano announced that same sex couples married in a state where same-sex marriage is legally recognized will receive same immigration benefits as opposite-sex couples in the United States. Hence, you can apply for and receive immigration benefits for your spouse as long as the legal marriage took place in a jurisdiction (in the US or abroad) where same-sex marriage is recognized. Please see below for the issued statement.
Implementation of the Supreme Court Ruling on the Defense of Marriage Act
Statement from Secretary of Homeland Security Janet Napolitano:
“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (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.”
Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family based migration visa?
A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an migration at the immigration visa application or adjustment of status stage, will be determined according to applicable migration law and will not be automatically denied as a result of the same-sex nature of your marriage.
Q2: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an migration visa petition for my spouse?
A2: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal migration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance and legal advice on this question going forward.
MC @ FC Law is experienced in all migration matters, including those matters as they relate to same-sex partners. We use our years of experience to help you and your family obtain the best possible outcome in your case. We are dedicated to providing support to parents and children and helping them through every step of their cases. If you have questions pertaining to a same sex couple immigration matter or immigration laws, contact a same-sex couple migration attorney at MC @ FC Law today! Call 702-258-1093 or fill out the form on this website to speak with one of the lawyers at our firm.