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USCIS Clarifies Same-Sex Marriage Immigration Rules

August 6, 2013

LGBTQ FlagEver since the Supreme Court ruled last month that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, same-sex married couples have been eligible to apply for green cards based upon marriage to a US citizen or US permanent resident of the same-sex. The US Citizenship and Immigration Services (USCIS) has just issued an announcement clarifying the rules that it uses to adjudicate same-sex marriage based cases. The announcement seems to indicate that virtually every area of immigration law, the USCIS will treat same-sex marriages exactly the same as opposite-sex marriages.

Green Cards are now Available for Same-Sex Spouses of US Citizens and US Permanent Residents

If you are a US citizen or lawful permanent resident and you are married to a same-sex foreign national, you can sponsor your spouse for a family-based immigration visa and apply for a green card. In making the determination of whether your spouse is eligible for a green card, the USCIS will not consider the same-sex nature of your marriage as a reason for denial.

Same-Sex Fiancés of US Citizens Also get Benefits

If you are a US citizen and you are engaged to be married to a person of the same sex who is a foreign national and lives outside of the US, you can file a fiancé petition for that person in order to allow him or her to come to the US so that you both can get married here.

Same-Sex Marriage Validity Depends Upon State law

Even if you live in a US state that does not recognize same-sex marriages, you can still file an immigrant petition for your spouse so long as your marriage took place in a US state that does recognize same-sex marriage as a legal. The USCIS will look to the law of the state in which you got married, not to the laws of the state where you currently live.

Cases That Were Previously Denied may be Reopened

If you have previously filed an immigrant petition for your spouse that was denied on the basis of your same-sex marriage, the USCIS states that it will reopen the case (I-130, I-485) for reconsideration. The USCIS is making efforts to contact applicants whose cases were denied after February 23, 2011 to advise the cases being reopened. If your case was denied before that date, you must notify the USCIS before March 31, 2014 and ask for your case to be reopened. Cases that are reopened will be considered anew, but without consideration to DOMA Section 3. If work authorization was denied, that may be reconsidered with a new Employment Authorization Document card issued.

Other Immigration Benefits

The USCIS will treat same-sex marriages exactly the same as opposite sex marriages in a wide range of other areas of immigration law as well. Immigration benefits are now available for those who qualify as the spouse of a accompanying or following to join the family-sponsored immigrant, employment-based immigrant, and certain subcategories of non-immigrants, or foreign national with refugee or asylum status. Eligibility is now available for discretionary waivers of certain inadmissibility grounds that require the person to be the spouse or other family member of a US citizen or lawful permanent resident.

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