Same-Sex Family Based Immigration 


The Supreme Court of the United States held that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional effective immediately, Same-Sex couples can now apply for family-based immigration benefits.  Same-Sex couples can now file family-based petitions with USCIS. The cases will be processed the same way as those filed on behalf of opposite-sex couples and the same requirements must be met.

The Immigration and Nationality Act divides immigration benefits for family members in two categories. The first is “Immediate Relative” and the second is “Family Preference.”

For same-sex couples, as it is also the case for opposite-sex couples, an “Immediate Relative” is:

•   A spouse;

•   A child under 21 years old;

•   An adopted child; or

•   A parent

of a United Stated States citizen who is at least 21 years old. There is no limit on immediate relative visas granted in a given year. Immediate Relatives are also eligible for a process called Adjustment of Status, where the Immediate Relative does not need to leave the United States to process his/her immigration case as long as the Immediate Relative was lawfully admitted and meets the requirements for admitted immigrants under the Immigration and Nationality Act.

Family Preference Visas refers to:

•   Unmarried children of U.S. citizen who are older than 21;

•   Spouses, minor children, and unmarried older children of U.S. permanent residents;

•   Married sons and daughters of U.S. citizens;

•   Siblings of U.S. citizens, provided the U.S. citizen is at least 21 years old.

IF YOU ARE A U.S. CITIZEN OR LAWFUL PERMANENT RESIDENT IN A SAME-SEX MARRIAGE TO A FOREIGN NATIONAL YOU CAN NOW SPONSOR YOUR SPOUSE UNDER THE FAMILY-BASED IMMIGRATION PROVISIONS OF THE U.S. IMMIGRATION AND NATIONALITY ACT.

One of the requirements for family-based immigration is that you must be legally married to your spouse. Neither the term “marriage” nor “spouse” is defined in the Immigration and Nationality Act (INA). However, in order to be valid for immigration purposes, a marriage must be legal in the place where it occurred. If the local law is complied with and the marriage is recognized, then the marriage is deemed to be legally “valid” for immigration purposes. There are some exceptions to this general rule. For example, marriages considered to be void under state law in the state of residence or as contrary to federal public policy, such as certain polygamous or incestuous marriages, cannot be recognized for immigration purposes even if the marriage is legal in the jurisdiction in which the marriage was executed. This is how the Defense of Marriage Act, or DOMA, prevented same-sex couples from accessing immigration benefits through marriage. DOMA specified that, for purposes of federal law, the term “spouse” could only be a person of the opposite sex.It is important to note that for immigration benefits, the same-sex couple must be legally married. This essentially means that couples with civil unions or legal rights that are similar to same-sex marriage but are not same-sex marriage, will still not be able to take advantage of immigration benefits unless they become legally married.

But what about if the same-sex marriage took place in another country? If the foreign country recognizes same-sex marriage and makes no distinction between same-sex marriage and opposite-sex marriage (meaning the rights and procedures are the same), then presumably, it should be acceptable for U.S. immigration authorities. However, because the Supreme Court case was so recently decided, these types of cases in general will likely take a longer period of time and may require the attorney to research same-sex laws in the foreign country to argue that it is equivalent to the U.S. same-sex marriage provisions for all purposes. Therefore, the first step for such a couple will be to verify whether or not they have the option to get married in the U.S. state or country in which they are currently residing. If a marriage is not possible, the couple must consider travelling to another state or country in order to get married. At that time, it will be very important to verify the requirements to obtain a lawful marriage, especially if there are any residency requirements. If you were married abroad, it is best to meet with an immigration attorney prior to filing your U.S. based immigration petition.

It is important to keep in mind that when it comes to family-based immigration, the same rules apply as with couples of the opposite sex. For example, Adjustment of Status, a process by which a foreign national can adjust to become a permanent resident within the United States, still only applies for partners of U.S. citizens.

The implementation of the U.S. Supreme Court ruling does not affect the family preference or immediate relative categories already created or create new categories under the Immigration Code.

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