Almost immediately after the US Supreme Court declared the Defense of Marriage Act (DOMA) unconstitutional, both Secretary of State John Kerry and Secretary of Homeland Security Janet Napolitano, pledged their full support in providing same – sex couples the very same immigration benefits available to opposite – sex couples.
Sec. Kerry, whose department oversees embassies and visa issuance, stated “We recognize the significance of this decision for affected families, and we are working to interpret the decision and implement policy and procedural changes as soon as possible. . . I look forward to the work that now can and must be done to adjust rules and regulations that affect the many married Americans who were hurt by this law.”
Sec. Napolitano, whose department oversees the USCIS, which is in charge of processing and approving petitions, stated that “effective immediately, I have directed US 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.”
USCIS has also already issued FAQ’s on same – sex spousal petitions. One question asks, “I am a US 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?” The answer is: “YES.” Note, however, that same-sex couples must meet the same eligibility and admissibility requirements as opposite – sex couples, such as proving it is a good faith marriage, etc.
The FAQ’s further deal with the effect of marrying in a state that recognizes same – sex marriages, but the couple is now living in a state that does not: “My spouse and I were married in a US 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?” Again, USCIS answers “YES.” In evaluating the petition and validity of the relationship, the law of the place of marriage controls, such that if the marriage was valid in the state where it took place, that marriage will be recognized across the country for immigration purposes, even if the couple resides in a state that does not yet recognize same-sex marriages.
For years, same-sex couples have been fighting for the right to be treated the same way as opposite – sex couples. With the Supreme Court ruling, there is no more discrimination. They are now treated the same. As you can see, both DOS and DHS are supportive, and are implementing the Supreme Court’s ruling. As a result, there are so many benefits available:
- Direct petition by US citizens or lawful permanent residents of a same – sex spouse.
- Derivative status for a same – sex spouse on employment and certain family based petitions. (For example, if your spouse is being petition by an employer or by a brother or sister, you would now be included in that petition.
- Your US citizen spouse can petition your children as his or her “stepchildren”, without having to adopt, if you married while they were under 18 years of age.
- Possible fiancé (K-1) visa for your boyfriend or girlfriend back home in the Philippines
There are so many other benefits now available to same – sex couples, and I strongly recommend that you jump at this opportunity. You should seek the advice and assistance of an attorney, who can evaluate your situation, ensure your eligibility, and help you finally achieve your American dream.
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Michael J. Gurfinkel is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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