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Same Sex Immigration Policy & Process in the United States

United States visas for same-sex spouses (issued by the United States Department of State) are to be filed in the same manner as those filed on behalf of an opposite-sex spouse. Effectively immediately after the United Sates Supreme Court’s decision in Windsor v. United States (which found section 3 of the Defense of Marriage Act (DOMA) unconstitutional) United States embassies and consulates will adjudicate visa applications that are based on a same-sex marriage in the same manner that applications for opposite-sex spouses are adjudicated. This is true whether the visa is for work, study, international exchange, legal immigrant, a same-sex spouse of a visa applicant coming to the United States will be eligible for a derivative visa.

Under Windsor, if a previous visa petition was denied on the basis of DOMA section 3, then the USCIS will reconsider the prior decision and reopen any and all associated applications (to the extent they were also denied as a result of the denial of Form I-130) such as Form I-485. In this specific instance no filing fee will be required for reopening the application.

Family Based Visa

File Form I-130 along with any other applicable application to sponsor same-sex spouse for a family based immigrant visa.

File form I-129F + K visa (as long as all immigration requirements are met) to sponsor a same-sex fiancé to enter the United States for marriage.

Benefits

Eligibility for benefits will also be determined on the same basis of opposite-sex marriages.

Naturalization

Same-sex marriages can reduce the residence period required for naturalization (just like in opposite-sex marriages). Naturalization requires 5 years of residence in the United States following admission as a lawful permanent resident. However, naturalization is available after a required residence period of 3 years if during that 3 year period an alien has been living in “marital union” with a United States citizen “spouse”.

Waivers

Whenever the immigration laws condition eligibility for a waiver on the existence of a “marriage” or status as a “spouse”, same-sex marriages will be treated exactly the same as opposite-sex marriages.

Stepchildren

Step children acquired through same-sex marriages also qualify as beneficiaries or for derivative status. Same-sex spouses/stepchildren (F-2/M-2, respectively) of student (F-1/M-1) visa applicants will need to obtain an I-20A prior to submitting their application.

Step children acquired through same-sex marriages can qualify as beneficiaries (F2A) or for derivative status (F3, F4, E1-E4, or DV). In any instance, the child must have been under the age of 18 at the time of the marriage.

Victims of Criminal Activity

Same-sex spouses of victims of criminal activity (U-2’s) and human trafficking victims (-2’s) will require completed Supplement A to Form I-918 or I-914, respectively, before an officer approves any derivative cases (which is also required for opposite-gender spouse).

Limitations

Only a valid marriage (as opposed to a civil union/domestic partnership) establishes eligibility as a spouse for immigration purposes. As long as the same-sex marriage is valid in the jurisdiction (foreign or domestic) where the ceremony took place, then the same-sex marriage is valid for immigration purposes.

Immigration laws and procedures, by nature, can become very complex, costly, and time consuming in any capacity, which means there is not much room for error and consulting with immigration professionals will become necessary. Lee, Green, Stewart & Paul Attorneys at Law has a team of informative and efficient attorneys ready and willing to assist and help understand same sex immigration policy and process in the United States.