THE United States Department of State has issued guidance for same-sex visa applications in light of the June 26, 2013 ruling of the Supreme Court that held Section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional.
The decision, in holding that each of the 50 states may define “marriage” according to their own terms, has many immigration-related implications for same sex couples, including those geographically separated in and outside of the United States.
According to the State Department’s recently issued instructions, “beginning immediately, consular officers should review visa applications filed by a same-sex spouse in the same manner as those filed by an opposite-sex spouse, unless a specific provision of the federal immigration laws requires a different approach.”
Implementation of the Supreme Court’s ruling required only a technical change to the Foreign Affairs Manual (FAM) which had previously defined the word “marriage” for immigration purposes to mean “only a legal union between one man and one woman as husband and wife,” and the word“spouse” to mean only “a person of the opposite sex who is a husbandor a wife.”
Under FAM 9 §40.1 N1.1 (a), same-sex marriages are now valid for immigration purposes, as long as the marriage is recognized in the “place of celebration” and is valid for immigration purposes even if the couple intends ultimately to reside in one of the remaining States that do not recognize same-sex marriages.
Additionally, the same-sex marriage is valid even if the applicant is applying in a country in which same-sex marriage is illegal. FAM 9 §40.1 N1.1 (a), as amended (2103).
Effective immediately, same-sex spouses and their children are also “equally eligible” for nonimmigrant derivative visas, such as H-4, E-2, F-2 and L-2 visas.
By extension, same-sex spouses and their children, which qualify as “stepchildren” of the primary applicant when the marriage takes place before the child turns age 18, can qualify asderivatives where the law permits issuance of the visa to a spouse or stepchild.
In order to seek derivative nonimmigrant benefits based on a same-sex union, applicants must make sure that their supporting documentation is ready and complete. For instance, same-sex spouses (and stepchildren) of F and M student visa applicants (F-2 and M-2) will need to obtain an I-20a prior to issuance, while spouses of J-1 exchange visitors (J-will need an approved DS-2019. With respect to immigrant visa applications, i.e. applicants seeking lawful permanent resident or “green card” status, a spouse of a U.S. citizen, as well as a spouse of a Lawful Permanent Resident under the F-2A category, may apply for an immigrant visa after USCIS approves the I-130.
As with all marriage cases, the validity of a marriage will depend on whether it was legally valid in place where entered into, and the marriage must also be a bona fide marriage, i.e. one that is not a “sham” or entered into solely for the purposes of obtaining an immigration benefit.
As with the nonimmigrant classifications, “stepchildren” acquired through such marriages are eligible to the same extent as stepchildren acquired through opposite sex marriage and children or stepchildren of same-sex marriages can also qualifyas dependents of employment-based categories and family-preference categories.
Since many same-sex couples, or one member of the couple, live abroad in countries where they are unable to marry, same-sex partners of US citizens may immediately apply for fiancé nonimmigrant K-1 visas to marry in the United States. Once the marriage is legally entered into in a state recognizing same-sex marriage, the foreign spouse may apply for adjustment of status to the green card status through USCIS.
There are an estimated 36,000 same-sex, bi-national couples in the United States, and thousands more living abroad or separated by international boundaries, and those families include more than 25,000 children. The State Department’s new policies will implement the Supreme Court’s recent ruling and guarantee all lawfully married couples equal rights in the context of US immigration law, including the right to be petitioned for lawful permanent resident status as the spouse of a US Citizen along with their families.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; Tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: [email protected] and www.hanlonlawgroup.com.
