Same Sex-Marriage Green Card? Yes, You May, Because We Are Born Equal
Long expected change is here due to Supreme Court decision in United States v. Windsor ending gay marriage discrimination. Now legally married same-sex couples may be eligible to apply for the U.S. non-immigrant visas and for green cards based on the marriage. Department of Homeland Security Secretary Janet Napolitano said she was pleased to see the justices strike down parts of the Defense of Marriage Act. She said her agency, which oversees the visa application process for all foreigners, will now allow U.S. citizens to petition for their same-sex couples just like other married couples. "This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits," Napolitano said in a statement. "Working with our federal partners, including the Department of Justice, we will implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws." Same-sex married couples must be legally married and prove their bona fide marriage. They would be eligible for non-immigrant visas to follow their spouse and to apply for immigrant visas if their spouse is a U.S. citizen or U.S. lawful permanent resident, however, many couples may be required to present heavy proof of bona fide marriage.
"After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed the 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." Statement from Secretary of Homeland Security Janet Napolitano.
Frequently Asked Questions
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 the individual, fact-specific circumstances.