An Immigration Guide for International Same-Sex Married Couples

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As we recently reported, the U.S. Supreme Court recently ruled in the case of U.S. v. Windsor that Section 3 of the Defense of Marriage Act is unconstitutional, and President Obama subsequently directed federal government departments to ensure that federal benefits are extended to legally married same-sex couples.

Accordingly, the Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Service (USCIS) promptly issued a number of clarifications regarding same-sex married couples. Most notably, DHS  clarified that either a U.S. citizen or a lawful permanent resident (a “green card” holder) in a same-sex marriage to a foreign national can now sponsor their spouse for a family-based immigration visa by filing Form I-130 and any applicable accompanying paperwork. Eligibility for approval of an I-130 petition in category F2A (family 2d preference visa for a spouse or minor child) will be based on the court’s recent ruling, and no petitioner will be denied solely on the basis of the same-sex status of their marriage.

The USCIS also clarified several questions about same-sex marriages and immigration benefits following the Windsor decision, namely that:

  • Applications for same-sex spouses and fiancées may be filed immediately;
  • The USCIS will generally look to the law of the place where the marriage was performed in determining whether it is valid for immigration law purposes; and
  • Applicants who had previously received a denial of an I-130 or other immigration application solely because USCIS did not, at that time, recognize the marriage can contact the agency by email at USCIS-626@uscis.dhs.ogov before March 31, 2014 to reopen the case at no additional cost.

While the Department of State and United States Citizenship and Immigration Services (USCIS) took prompt action to prepare their agencies to receive visa applications for international same-sex married couples, Customs and Border Protection (CBP) has been a bit more hesitant in issuing guidance. In a recent teleconference with representatives from the American Immigration Lawyers Association (AILA), CBP officials stated that the decision to allow a nonresident spouse to enter the United States is port-specific, and that CBP is awaiting guidance from DHS and the Department of Justice before issuing any guidance on the subject.

While international same-sex married couples can file an I-130 to request an adjustment of status if they are currently present in the United States, the process is a little trickier for those international same-sex married couples located abroad. In these instances, the couple can begin the visa process via their local embassy if they are located abroad, but a nonresident should not enter the U.S. from abroad as a derivative without first contacting the port of entry or an immigration attorney for guidance.