As almost everyone now knows, on June 26, the U.S. Supreme Court overruled Section 3 of the Defense of Marriage Act (DOMA). On the immigration front, this means that a U.S. Citizen same-sex spouse who is married to a non-citizen may now petition for legal permanent residency for their non-citizen spouse. This is great news for many!
The U.S. Citizenship and Immigration Service recently clarified several issues about same-sex marriages and immigration benefits:
Forms I-130s (for spouses) and I-129Fs (for fiance/fiancee) may be filed by same-sex couples immediately.
Same-sex marriages will be considered valid if the marriage itself took place in a state (or country) that recognizes same-sex marriages. So, even if a same-sex couple lives in a state that has not yet legalized same-sex marriage (say, Nebraska, for instance), as long as the couple were married in a state that DOES recognize same-sex marriage (for example, Iowa), CIS will recognize the marriage as a legal marriage for the purposes of immigration.
For those same-sex couples who already courageously filed I-130s or other immigration applications before the Court’s ruling in June, and have had them denied based solely on the fact that CIS did not recognize the same-sex marriage, CIS will be re-opening these cases at no expense to the applicants. If you received a denial of an I-130 or other immigration application solely because CIS did not recognize your same-sex marriage, you should contact CIS by email at USCISemail@example.com by March 31, 2014, to be sure your case will be re-opened.
Please keep in mind, just because same-sex marriages are now recognized as legal relationships by CIS, it does not mean that all same-sex spouses will qualify for immigration benefits. As with heterosexual couples, same-sex non-citizen spouses will have to be found “admissible” in order to gain legal permanent residency. Factors that could cause a non-citizen to be “inadmissible” are, among others, being undocumented in the U.S., having entered the U.S. illegally, having lied on previous immigration applications, or having committed certain crimes. Some of these inadmissibility grounds may be waived by filing a specific waiver with certain documentation; others are not waivable.
Same-sex couples, as all couples, should consult with an immigration attorney before filing an immigration application, especially if the non-citizen spouse has any criminal convictions (even minor ones) or immigration offenses.