Same Sex Marriage

Frequently Asked Questions Regarding Same Sex Marriage

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 immigrant visa?
  • Yes. 
I am a U.S. citizen who is engaged to be married to a foreign national of the same sex. Can I file a fiancé or fiancée (K-1) petition for him or her?
  • Yes.  As long as all other immigration requirements are met, a same-sex engagement will be treated as any other K-1 fiance visa application and must meet all its standards as well. 
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 immigrant visa petition for my spouse?
  • Yes.  In evaluating a 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 will be happy to provide further guidance on this question if applicable.  


Do I have to wait until USCIS issues new regulations, guidance or forms to apply for benefits based upon the Supreme Court decision in Windsor?
  • No. You may apply right away for benefits for which you believe you are eligible.  Presidential directives to the USCIS provided for this.
Petition or application was previously denied solely because of DOMA. What should I do?
  • 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 (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 have to include payment of applicable fees as directed.
Changes in Eligibility Based on Same-Sex Marriage

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.
If I am seeking admission under a program that requires me to be a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful permanent resident, could a same-sex marriage affect my eligibility?
  • 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.
Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization?
  • 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.
Inadmissibility Waivers

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