Same-sex marriages that are valid under State law are eligible to apply and receive immigration benefits. Applicants will still be required to prove to Department of Homeland Security that the marriage is bona fide, meaning good-faith and based on love and not entered into for an immigration benefit.
On June 26, 2013, the U.S. Supreme Court ruled in the case U.S. v. Windsor, that section 3 of the Defense of Marriage Act (DOMA) was unconstitutional as a violation of the constitutional guarantees of equal protection and due process. With this decision, DOMA was removed as an impediment to the recognition of lawful same-sex marriages if the marriage is valid under the laws of the State where it was celebrated. The U.S. Supreme Court decision was re-affirmed in the immigration case Matter of Oleg B. Zeleniak that was reviewed by the Board of Immigration Appeals on July 17, 2013 and concluded that applicants of same-sex marriages are eligible for federal immigration benefits once the marriage is lawful and good-faith.
The first state to recognize same-sex marriages was Massachusetts in 2004 – the United States has come a long way since 2004 in now recognizing same-sex marriages for purposes of the spouses receiving federal benefits (including immigration benefits).
Q1.What type of immigration benefits can same-sex marriages receive?
A1.Fiancé and fiancée visas, immigrant visa petitions (including based on marriage), refugee and asylee derivative status, inadmissibility and waivers of inadmissibility, removability and waiver of removability, cancellation of removal and adjustment of status.
Q2.Which States allow same-sex marriages that are legally recognized by Immigration?
A2. District of Columbia: Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington
Q3.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?
A3.Yes, you can file the petition. 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.
Q4. 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?
A4.Yes, you can file the petition. In evaluating the petition, as a general matter, U.S. Citizenship & Immigration Services will 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.
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