The U.S. Citizenship & Immigration Services (USCIS) has continued to issue guidance on same-sex visa petitions since the Supreme Court’s holding in United States v. Windsor, which invalidated portions of the Defense of Marriage Act (DOMA). USCIS has recently updated its Frequently Asked Questions (FAQs) on this topic.
One of the most recent updated FAQs, clarifies whether same-sex couples who live in states, such as Florida, that do not permit same-sex marriage are still eligible for immigration benefits. The law of the place where a marriage is celebrated determines whether the marriage is legally valid for immigration purposes. The application of this rule is no different than as applied to opposite-sex marriages. For example, all states do not permit common law marriages, but a couple who has met the requirements for common law marriage in a state that allows it, are eligible to apply for immigration benefits based on the marriage. Similarly, same-sex couples who were married in states that permit same-sex marriage may now apply for immigration benefits, even if they live in a state that does not permit same-sex marriage.