USCIS issues expanded and revised FAQ in the wake of the Supreme Court's decision overturning DOMA.

On July 26, the U.S. Citizenship and Immigration Services (USCIS) published frequently asked questions (FAQs) regarding immigration benefits for same-sex couples. These FAQs were published in response to the U.S. Supreme Court's June 26 ruling that section 3 of the Defense of Marriage Act (DOMA)—the provision of the law barring the federal government from recognizing same-sex marriages—is unconstitutional.[1] The guidance provided in these FAQs is summarized below. The USCIS is apparently moving forward to make marriage-based immigration benefits available to same-sex spouses. We await similar guidance from other agencies involved in the immigration area, including the U.S. Department of State and U.S. Customs and Border Protection, a sister agency to the USCIS within the Department of Homeland Security.

Petitioning for a Same-Sex Spouse or Fiancé(e)

A U.S. citizen or lawful permanent resident in a same-sex marriage with a foreign national may now sponsor his or her spouse for a family-based immigrant visa by filing Form I-130, Petition for Alien Relative. A petitioner's eligibility to sponsor his or her spouse and the spouse's admissibility as an immigrant will be determined according to applicable immigration laws; the petition will not be automatically denied as a result of the same-sex nature of the marriage.

In situations where a same-sex couple was married in a U.S. state that recognizes same-sex marriage but resides in a U.S. state that does not, the U.S. citizen or permanent resident spouse may still sponsor his or her same-sex spouse for a family-based immigrant visa. In general, in evaluating the petition, the USCIS will look to the law of the place where the marriage occurred when determining whether the marriage is valid for immigration law purposes. This general rule is subject to some limited exceptions under which federal immigration agencies have historically considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether such exceptions apply may depend on individual, fact-specific circumstances. The USCIS may provide further guidance on this question going forward.

A U.S. citizen who is engaged to be married to a foreign national of the same sex may now file a fiancé or fiancée petition on behalf of the foreign national by filing Form I-129F, Petition for Alien Fiancé(e). As long as all other immigration requirements are met, a same-sex engagement may allow the fiancé(e) to enter the United States for marriage.

Applying for Benefits

Same-sex married couples seeking to file new petitions or applications for immigration benefits may do so at this time. There is no need to wait for the USCIS to issue new regulations, guidance, or forms.

In the case of previously submitted applications and petitions denied solely based on section 3 of DOMA, the USCIS will reconsider its prior decision as well as reopen associated applications denied as a result of the denial of the Form I-130. The USCIS will make a concerted effort to identify denials of Form I-130 petitions that occurred on the basis of section 3 of DOMA after February 23, 2011 (when President Obama decided not to defend section 3 of DOMA). The USCIS will also make an effort to notify petitioners, at the petitioner's last known address, of the reopening of the case and to request updated information in support of the petition.

To alert the USCIS of a Form I-130 petition that a petitioner believes falls within this category, the petitioner should send an email to USCIS-626@uscis.dhs.gov stating that he or she has a pending petition. The USCIS will reply to the email with follow-up questions as necessary to update the petition for processing.

For denials of Form I-130 petitions that occurred prior to February 23, 2011, petitioners must notify the USCIS by March 31, 2014 in order for the USCIS to act on its own to reopen the petition. Petitioners may do so by sending an email to USCIS-626@uscis.dhs.gov and noting that their petition was denied on the basis of section 3 of DOMA.

Once a Form I-130 petition is reopened, it will be considered anew—without regard to section 3 of DOMA—based upon the information previously submitted as well as any new information provided. If necessary, the USCIS will also concurrently reopen associated applications to the extent they also were denied as a result of the denial of the Form I-130 petition (such as concurrently filed Form I-485 applications).

If an applicant's work authorization was denied or revoked based upon the denial of the Form I-485, the denial or revocation will be concurrently reconsidered and a new employment authorization document (EAD) will be issued if necessary. If a decision cannot be rendered immediately on a reopened adjustment of status application, the USCIS will either (1) immediately process any pending or denied application for employment authorization or (2) reopen and approve any previously revoked application for employment authorization. If the USCIS has already obtained the applicant's biometric information at an application support center (ASC), a new EAD will be produced and delivered without any further action by the applicant. In cases where the USCIS has not yet obtained the required biometric information, the applicant will be scheduled for an ASC appointment.

If another type of petition or application (other than a Form I-130 petition or associated application) was denied based solely upon section 3 of DOMA, individuals must notify USCIS by March 31, 2014 by sending an email to USCIS-626@uscis.dhs.gov as directed above. The USCIS will promptly consider whether reopening that petition or application is appropriate under the law and the circumstances presented.

No fee will be required to request the USCIS to consider reopening a petition or application pursuant to this procedure. Alternatively, an individual may file a new petition or application to the extent provided by law and according to the form instructions, including payment of applicable fees as directed.

Changes in Eligibility Based on Same-Sex Marriage

Under 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, the following: (1) an alien who seeks to qualify as a spouse accompanying or following to join a family-sponsored immigrant, (2) an employment-based immigrant, (3) certain subcategories of nonimmigrants, or (4) 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.

There are some situations in which either an individual's 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.

Residency Requirements for Naturalization

As a general matter, naturalization to U.S. citizenship requires five years of residence in the United States following admission as a lawful permanent resident. Naturalization is also available after three years of residence in the United States following admission as a lawful permanent resident if, during that three-year period, the individual has been living in "marital union" with a U.S. citizen "spouse." For this purpose, same-sex marriages will be treated exactly the same as opposite-sex marriages.

Inadmissibility Waivers

Immigration law allows discretionary waivers of certain inadmissibility grounds, conditional upon being the "spouse" or other family member of a U.S. citizen or lawful permanent resident. For the purpose of determining eligibility for such waivers on the existence of a "marriage" or on one's status as a "spouse," same-sex marriages will be treated exactly the same as opposite-sex marriages.

Implications

Employers who "sponsor" foreign nationals for temporary or permanent immigration-related benefits should assess their existing policies and practices as they relate to accompanying family members in order to take into account the eligibility of same-sex spouses for U.S. immigration benefits. 

[1]. United States v. Windsor, No. 12-307 (U.S. June 26, 2013), available here.