The U.S. Supreme Court recently overturned the 1996 Defense of Marriage Act, also known as DOMA. This decision allows U.S citizens and legal permanent residents to seek the same federal immigration benefits as heterosexual married spouses. U.S citizens may immediately begin to petition for their same-sex spouses living in the United States or for their fiancés living abroad. U.S Permanent Residents can now begin the immigration process for their foreign national spouses.
The Supreme Court’s decision states that DOMA was a violation of the Equal Protection Clause of the U.S. Constitution and that the U.S. government must treat all legal marriages equally. U.S. immigration law is federal law and as such immigration benefits are granted regardless of residence within the U.S. This means married same sex partners are now able to obtain permission to reside in the United States and obtain the same benefits as married heterosexual couples if they were legally married in a U.S state/territory that recognizes same-sex marriage or if they were married in a country that recognizes same-sex marriage.
Same-sex couples may now be eligible for the following U.S. immigration benefits:
Family Based Visas:
- Adjustment of Status to obtain Legal Permanent Residency
- I-130 Petitions for Relatives
- K-1 Fiancé visas and K-3 Marriage Visas
- Immigrant Visas through consular processing abroad
Employment Based Visas:
- H-4 Visas for the beneficiary of a spouse in H1B Visa Status
- L-2 Visa for the beneficiary of a spouse in L-1 Visa Status
- R-1 Visa for the spouse of a religious visa holder
- E-2 Visa for the spouse of an E-2 treaty trader/investor Visa
- Permanent residency benefits for the spouse of EB-5 Investors
Deportation and Removal Situations:
- Cancellation of Removal
- Adjustment of Status while in Immigration Court Proceedings
- I-212(h) waivers
How do I know if my same-sex qualifies for U.S. Federal Immigration Benefits?
Did you get married in a state that recognizes same sex marriages?
The important aspect here is the state WHERE you got married and not necessary where you currently live. You do not need to be a resident of a state in order to obtain a marriage in that state. In fact, the first approved same sex immigrant I-130 petitions was for a couple who resided in Florida, a state that has its own state-DOMA laws. However, because they were married in New York, a state that recognizes same sex marriages, they had a legally recognized marriage certificate. States that currently recognize same sex marriage include: California, Connecticut, Delaware, District of Columbia, Iowa, Main Maryland, Massachusetts, Minnesota (effective 08/01/2013), New Hampshire, New York, Rhode Island (effective 08/01/2013) Vermont and Washington.
Did you get married in a country that recognizes same sex marriage?
Provided you have a legally valid marriage certificate, you may be eligible for U.S. immigration benefits. Countries that currently recognize same sex marriage include: Argentina, Belgium, Canada, Denmark, France, Iceland, Netherlands, New Zealand (effective 08/10/2013), Norway, Portugal, South Africa, Spain, Sweden, Uruguay (effective 08/01/2013) and certain jurisdictions in Brazil and Mexico.
A civil union does not give you federal immigration benefits.
If you have a civil union or a State Registered Domestic Partnership you can get married to the same person in a state that recognizes same sex marriage. In order to marry someone in a same sex marriage state, all the laws governing marriage for heterosexual couples apply. You must ensure that you are legally divorced from any prior spouses and if you were in a civil union, ensure that the previous civil union legally ended.
California and Proposition 8 Marriage.
On 06/28/2013, the Ninth Circuit Court of Appeals lifted its stay on its lower court ruling that Proposition 8 was unconstitutional. Therefore, same-sex marriage is now again legal in California. Marriages that occurred prior to Proposition 8, the California legislation creating a constitutional ban on same sex marriage, are valid (06-16-2008 to 11-05-2008). The Hollingsworth v. Perry decision on June 27, 2013 declared Proposition 8 unconstitutional and same sex marriages are now once again granted in California.
I recently married my long term partner in Iowa. I am a U.S. citizen and my partner is a graduate student and has been studying here for 3 years. Can I sponsor him for a green card?
In this instance the marriage was conducted in a state that recognizes same-sex marriages, you do qualify for marriage based immigration benefits under current guidance. There are other factors to take into consideration, which would apply to any married couple seeking immigration benefits. Our attorneys can guide you through this process and provide you the best solutions for you and your spouse’s needs.
I am from Spain and I have an approved H-1B visa. Can my same sex spouse join me in the U.S.?
Yes, your spouse is now able to join you in the United States as an H4 derivative of your approved H-1B visa.
I am a U.S. citizen and I just got engaged. Can I sponsor my same sex fiancé?
Yes. You can sponsor your fiancé if you meet the requirements to sponsor a fiancé, such as physically meeting with them, ability to provide financial support and the requirements to marry them with 90 days of their arrival in the U.S. in a state that issues same-sex marriage certificates.
I have been legally married to my same-sex partner for five years. I am currently a student living in the United States. Me and my spouse travel a lot and in fact just returned from a trip abroad. Can I obtain permanent residency?
If you were legally married in a state or country that recognizes and issues same-sex marriage certificates then you do qualify for U.S. immigration benefits. However, immigration law has many facets to it and individual situations such as your current immigration status, preconceived intent, and time within and outside the U.S. may play a factor in the best way to proceed. It is best to discuss your individual situation with our attorneys so that you and your spouse can make the best informed decision.
I came to the U.S. several years ago on a tourist visa. My visa has long expired. I am currently in a same sex civil union. Can I obtain permanent residency?
Civil unions do not provide the same benefits as marriage. If you marry your partner in a state that recognizes and issues same sex marriage certificates then you could potentially benefit from U.S. immigration laws.
Please note that the above situations are for informational purposes only. Every individual situation is unique and an informed decision will include factors such as (1) the method of entry into the United States (2) past immigration history (3) any criminal history and (4) the amount of time present in the United States. These considerations are not specific to same-sex couples but apply to all couples seeking U.S. immigration benefits. Our website offers a more complete listing of immigration services. The best way to determine the path that is best for you and your spouse is to email or call and schedule a consultation with our attorneys so that we can best analyze your specific situation. We can arrange a time to meet with you in person, over Skype or through a telephone consultation and can represent you and your spouse globally for all of your immigration needs. To set up a time to meet with our attorneys please call (773) 687-0549 or email [email protected]