16 Jul Same sex marriage by green card holders now eligible to file immigrant visa petition
We have filed immigrant visa petition based on same sex marriage as soon as the USCIS issued guidance that they will accept the filing. Please note that not only U.S. citizens may file a petition under the newly approved law. Green card holders may also file for their spouse and dependent children. The good news is that the Second Preference category is current for the month of August 2013. The significance of this is that the spouses and dependents of green card holders can adjust status if the beneficiary is in the U.S. and get work authorization. The beneficiary must have Sec. 245(i) eligibility in order for them to adjust status if their allowed stay has expired.
Statement from Secretary of Homeland Security Janet Napolitano:
“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 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.”
Frequently Asked Questions issued by USCIS:
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. (End of USCIS press release)
It is our Law Firm’s conclusion that the immigration benefits for U.S. citizens and green card holders under the U.S. immigration law are now being implemented equally for opposite sex marriage and same sex marriage.
Question: My partner can’t get a visa to come to the United States, and we can’t marry in his/her country because it does not recognize same sex marriage. What can we do now?
Answer: U.S. citizens can file fiancé/e visa applications for committed partners. This application requires the couple to demonstrate that they have a “bona fide” relationship. When the Fiancée visa is granted, the couple is required to marry within 90 days of the foreign partner’s entry into the US in the state that recognize same sex marriage. Once married, the couple can file the marriage-based application from within the United States.
Note: This is not a legal advice. You should consult with an immigration attorney about your specific situation.