Same Sex Marriage
- Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application) (K-3 or CR-1 petition). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.
- Yes. You may file a Form I-129F. As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for marriage.
- 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 immigration 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 on this question going forward.
- No. You may apply right away for benefits for which you believe you are eligible.
- USCIS will reopen those petitions or applications that were denied solely because of DOMA section 3. If such a case is known to them or brought to their attention, USCIS will reconsider its prior decision, as well as reopen associated applications to the extent they were also denied as a result of the denial of the Form I-130 (such as concurrently filed Forms I-485).
- USCIS will identify denials of I-130 petitions that occurred on the basis of DOMA section 3 after February 23, 2011. USCIS will also an effort to notify you (the petitioner), at your last known address, of the reopening and request updated information in support of your petition. If you have not received a notice please contact Amerilawgroup for details on proceeding; there is no charge for this consultation.
- No fee will be required to request USCIS to consider reopening your petition or application pursuant to this procedure. In the alternative to this procedure, you may file a new petition or application to the extent provided by law and will include payment of applicable fees as directed.
What about immigration benefits other than for immediate relatives, family-preference immigrants, and fiancés or fiancées? In cases where the immigration laws condition the benefit on the existence of a “marriage” or on one’s status as a “spouse,”will same-sex marriages qualify as marriages for purposes of these benefits?
- Yes. Under the U.S. immigration laws, eligibility for a wide range of benefits depends on the meanings of the terms “marriage” or “spouse.” Examples include (but are not limited to) an alien who seeks to qualify as a spouse accompanying or following to join a family-sponsored immigrant, an employment-based immigrant, certain subcategories of non-immigrants, or an alien who has been granted refugee status or asylum. In all of these cases, a same-sex marriage will be treated exactly the same as an opposite-sex marriage.
- There are some situations in which either the individual’s own marriage, or that of his or her parents, can affect whether the individual will qualify as a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful permanent resident. In these cases, same-sex marriages will be treated exactly the same as opposite-sex marriages.
- Yes. As a general matter, naturalization requires five years of residence in the United States following admission as a lawful permanent resident. But, according to the immigration laws, naturalization is available after a required residence period of three years, if during that three year period you have been living in “marital union” with a U.S. citizen “spouse” and your spouse has been a United States citizen. For this purpose, same-sex marriages will be treated exactly the same as opposite-sex marriages.
I know that the immigration laws allow discretionary waivers of certain inadmissibility grounds under certain circumstances. For some of those waivers, the person has to be the “spouse” or other family member of a U.S. citizen or of a lawful permanent resident. In cases where the required family relationship depends on whether the individual or the individual’s parents meet the definition of “spouse,”will same-sex marriages count for that purpose?
- Yes. Whenever the immigration laws condition eligibility for a waiver on the existence of a “marriage” or status as a “spouse,” same-sex marriages will be treated exactly the same as opposite-sex marriages.
* Answers based on USCIS bulletin 7/26/2013 re Supreme Court Ruling, US v. Windsor