On June 26, 2013, the Supreme Court in United States v. Windsor struck down the discriminatory federal Defense of Marriage Act (DOMA) and affirmed that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government, including immigration benefits. The Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, and federal departments were instructed to ensure the decision and federal benefits for same-sex legally married couples were implemented swiftly and smoothly.
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?
Yes, thanks to DOMA being overturned by the Windsor decision by the Supreme Court, you are now eligible 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?
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.
Q3: What states recognize same-sex marriage?
California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, Vermont, Washington and six counties in New Mexico (currently on appeal to State Supreme Court).
Q4: If I entered the US without permission, can I still qualify for green card through marriage to same sex partner?
Yes, you will have to apply for the I-601 waiver and go to visa interview at consulate. If your spouse is US citizen, you can qualify for provisional waiver inside of the United States.
Q5: What if I married in another country that recognizes same sex marriage, will the US also recognize it?
Yes, based on the Supreme Court ruling in Windsor, the US government will now recognize any same sex marriage that was entered into legally in state/country of marriage.
Q6: What if my partner or I has been married to someone of opposite sex, can I still qualify for green card through marriage to same sex partner?
Yes, you can still qualify, however be prepared to answer questions about your prior marriage at your interview with USCIS or the Consulate. Consulting with an attorney before filing any immigration forms would be highly recommended.
Q7: My partner lives in an economically under-developed country and has applied three times for a tourist visa and keeps getting denied. What can I do to help?
It can be very difficult for foreign nationals to obtain visas to come to the U.S. The foreign national must prove that his intent is not to remain in the U.S. permanently. The worse things are in the foreign national’s country, the more difficult it may be for him to prove that his intent is truly to remain in the U.S. temporarily. The most important element in the application for a tourist visa is proving ties to his home country (owning property, having good employment, close family ties, etc.)
It may be helpful if the foreign national is coming to the U.S. for a very specific, limited reason, such as to participate in a work-related conference. Generally, the foreign national should not let the U.S. government know that he has a long-term relationship with an American citizen as this could likely lead to the visa application being denied since the relationship would show a strong reason to intend to remain in the U.S. permanently. Foreign consulates have a great deal of discretion in deciding applications for visas, and there is no appeal for a denial.
Now that DOMA has been declared unconstitutional, however, gay and lesbian U.S. citizens can file fiancé/e visa applications on behalf of their committed partners. This application requires the couple to demonstrate that they have a “bona fide” relationship. When the visa is granted, the couple is required to marry within 90 days of the foreign partner’s entry into the US. Once married, the couple can file the marriage-based application from within the United States. For families that can travel to another country that has marriage equality, another option would be to marry there and then have the U.S. citizen sponsor the foreign national spouse for a green card from their home country.
Q8: I am HIV positive, can I still get a green card?
Yes, On January 4, 2010, the U.S. lifted its HIV ban for immigrants and nonimmigrants. This means that green card applicants will no longer be tested for HIV, waivers will no longer be necessary, and travelers will no longer be asked about their HIV status.