US Immigration Reform: Gay Marriage & Green Cards

Supreme Court invalidates statutes in DOMA (Defense of Marriage Act) possibly paving the way for Married Gay couples to have same access to US Immigration proceedings as straight couples

A larger social battle and movement has been going on in the US regarding Gay Marriage.  Currently 12 states and DC allow Gay Marriage, however it is only really recognized within the state where the marriage has taken place. So there was no Federal recognition of the relationship so that meant no joint filing of tax returns, no tax free implications of asset transfer upon death, no automatic custodial rights for children, lack of rights around making medical decisions for spouse, etc.

Essentially the lack of rights are too numerous to name. The portion of the DOMA Act signed into law by President Clinton in the 90s that specifies the couple must be a man and a woman was ruled invalid under the Constitution in a close 5-4 decision by the US Supreme Court this pas week and thus now couples married in states that allow Gay Marriage have federal recognition for the things mentioned above. However US Immigration is an unknown frontier as this now effects foreign citizens and possible recognition of marriages outside the US and ultimately is to benefit non US citizens.

For example today under the K1 fiancee visa, K-3 marriage visa, Green Card spousal sponsorship or Non-Immigrant Partner visas, the spouse had to be a heterosexual legally married couple. Now that legal marriage could have happened anywhere but their had to be a Marriage Certificate proof of the relationship. Now most countries around the world still don’t recognize gay marriage and then within some countries, it is certain states or provinces that recognize homosexual domestic partnerships but not marriage and/or it is not recognized at the national level.

In other words the US Immigration implications of this ruling is murky. On the positive side as reported by Think Progress, deportation proceedings had been halted following this ruling against a Colombian man who married a US citizen and tried to file for Permanent Residency. So the Obama Administration and Homeland Security Secretary Janet Napolitano seem to want to allow this ruling to extend to US Immigration, however it is clear that they will actually have to write specified policies for this so it is probably still a wait and see moment at this stage.

UPDATE: (July 1, 2013) The NY Times are reporting a Bulgarian man as the first gay man to have his Green Card Permanent Residency petition approved on Friday following the Supreme Court decision on DOMA on Tuesday. Apparently they alos report that the USCIS has kept record of recent denials in anticipation of a Supreme Court decision on DOMA and that gay couples denied in the past don’t have to refile. However no word as to how far back this goes and probably does not include couples who were denied during President Bush’s tenure. However the USCIS still has to address a lot of issues to formulate a clear policy for this.

UPDATE 2: (July 3, 2013) “[E]ffective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review 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,” Napolitano writes.

Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?

A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.

Q2: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?

A2: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.

UPDATE 3: (August, 2 2013) Secretary of State John Kerry has now announced that non-immigrant visa processing like the H-1B visa, E-3 visa, L-1 Visa, J-1 Visa, F-1 visa, etc. will now also allow same sex spousal processing for the partner visas H-4 visa, E-3D visa, L-2 visa, J-2 visa, F-2 visa, etc. if the marriage is legal in the jurisdiction.
“Effective immediately, when same-sex spouses apply for a visa, the Department of State will consider that application in the same manner that it considers the application of opposite-sex spouses. As long as a marriage has been performed in a jurisdiction that recognizes it, so that it is legal, then that marriage is valid under U.S. immigration laws and every married couple will be treated exactly the same.”


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