Implementation of The Supreme Court Ruling on The Defense of Marriage Act

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The Department of Homeland security released FAQs to clarify the effect of the Supreme Court’s ruling that Section 3 of DOMA is unconstitutional.  U. S. Citizens (USCs) and Legal Permanent Residents (LPRs) in same-sex marriages can now sponsor their spouses for immigrant visas. In evaluating the petition, USCIS will generally rely on the State law where the marriage took place:

  1. A USC or LPR in a same-sex marriage to a foreign national can sponsor his/her spouse for a family-based immigrant visa.  He/she may file a Form I-130 and any applicable accompanying application(s) including I-485, I-131, I-765, G-325A, I-829, etc.  The eligibility to petition for his/her spouse, and the 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 the marriage.
  2. A same-sex couple married in a U.S. state that recognizes same-sex marriage, but who lives in a state that does not, can still file an immigrant visa petition for his or her spouse.  In evaluating an I-130 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.