Illinois Passes Legislation Approving Same-Sex Marriage: What Does This Mean for Binational Same-Sex Couples?


On November 5, the Illinois legislature voted to pass legislation that legalizes same-sex marriage in Illinois. Gov. Pat Quinn plans to sign the bill into law on November 20, 2013, and effective June 1, 2014, same-sex couples will be able to wed in Illinois – with the same rights and benefits as heterosexual married couples.

In light of the Supreme Court’s decision in U.S. v. Windsor in June 2013, in which the Court struck down section 3 of the Defense of Marriage Act, same-sex couples who are married in Illinois (or any other state permitting same-sex marriage) will have the same immigration rights and benefits, as well.

What Does Illinois’s Same-Sex Marriage Law Mean for Binational Couples?

Now that Illinois permits same-sex marriage, binational same-sex couples who wed in Illinois will be able to apply for family-based visas and green cards on behalf of their spouse. Earlier this summer, the Department of Homeland Security (DHS) confirmed 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 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 second 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.

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.

As we recently reported, since the Supreme Court’s decision in Windsor in June, an estimated 36,000 same-sex couples nationwide have filed petitions for their partners to receive green cards as foreign-born spouses of U.S. citizens. According to Laura Lichter, former president of the American Immigration Lawyers Association, many of the first cases to receive USCIS approval are those in which time is especially of the essence.

Applying for Marriage-Based Immigration Benefits

Although the DHS instructed the USCIS to review immigration visa petitions filed on behalf of legally married same-sex spouses in the same manner as those filed on behalf of opposite sex spouses, it can still take several months for a couple to get an interview with the immigration service after filing an application for a marriage-based green card or a change in status. Moreover, the length of marriage still remains a factor in obtaining a green card with couples married less than two years are subject to more scrutiny – a factor that can work against same-sex couples since many states have only recently begun to allow same-sex marriage and because the couple may have been reluctant to openly publicize their relationship until recently.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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