Homeland Security Issues Guidance on Same-Sex Immigration Benefits

by Ronald Shapiro
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After the recent U.S. Supreme Court ruling in the case of U.S. v. Windsor, which found that Section 3 of the Defense of Marriage Act is unconstitutional, President Obama directed federal government departments to ensure that federal benefits are extended to legally married same-sex couples in accord with the decision.

In furtherance of that directive, the Secretary of Homeland Security Janet Napolitano ordered the U.S. Citizenship and Immigration Services (“USCIS”) to review immigration visa petitions filed on behalf of legally married same-sex spouses in the same manner as those filed on behalf of opposite sex spouses.

The Department of Homeland Security (“DHS”) also posted for public viewing on its Website Q&A explanations about the expected implementation of the Supreme Court ruling in actual practice.

First, DHS  clarified that either a U.S. citizen or a lawful permanent resident (a “green card” holder) in a same-sex marriage to a foreign national can now sponsor their spouse for a family-based immigration visa by filing Form I-130 and any applicable accompanying paperwork. Eligibility for approval of an I-130 petition in category F2A (family 2d preference visa for a spouse or minor child) will be based on the court’s recent ruling, and no petitioner will be denied solely on the basis of the same-sex status of their marriage.

Second, in evaluating the petition, the USCIS will, as a general rule, look to the law of the place where the marriage was performed in determining whether it is valid for immigration law purposes.

However, that general rule is subject to some limited exceptions under which federal agencies may consider the law of the state of residence in addition to the law of the place where the marriage was performed. Whether these limited exceptions apply to any given case will be determined upon an individual, fact-specific basis, according to DHS.

DHS also announced that it may provide further guidance on this subject as petitions are processed. The publisher of this blog will keep an eye on these developments and post any news that might be relevant to same-sex couples seeking federal immigration benefits for their spouses.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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