[author: Mercedes Bugallo]
Immigration visas, unlike marriage recognitions, are regulated by the federal government, not the individual states. This means that the Pennsylvania Whitewood decision, albeit groundbreaking on a state level, has no effect on a same-sex couple’s application for green cards or fiancé visas.
Fortunately, however, the federal government has been treating both same-sex and opposite-sex married couples alike for immigration purposes since shortly after the U.S. Supreme Court declared the federal Defense of Marriage Act (“DOMA”) unconstitutional in 2013, in the case of United States v. Windsor. Before Windsor, a U.S. citizen could not sponsor his or her foreign spouse for a green card or fiancée visa. Now, bi-national same-sex couples are afforded the same consideration as opposite-sex couples for immigration purposes. Indeed, according to the U.S. Citizenship and Immigration Services (USIS), which is the organization in charge of the visa process for spouses of American citizens, USIS reviews immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.
Keep in mind that “the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. . . . The domicile state’s laws and policies on same-sex marriages will not bear on whether USCIS will recognize a marriage as valid.” In other words, USCIS will consider visa petitions of same-sex couples who have a valid marriage license from a U.S. state or foreign country where same-sex marriage is legal, even if the couple lives in a state that does not recognize same-sex marriage. But, it will not consider visa petitions for same-sex spouses whose marriage was performed in a country or state that does not recognize same-sex marriage, even if the couples lives in a state that does recognize same-sex marriages, because the marriage was not lawfully entered into.
The U.S. Citizenship and Immigration Services’ FAQ section for same-sex marriage applications and benefits can be found at: http://www.uscis.gov/family/same-sex-marriages.