After decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly.
To that end Janet Napolitano (Secretary of Homeland Security) have directed U.S. 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
Frequently Asked Questions
Q. 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?
A. Yes, you can file the petition. You may file a Form I-130 (and any
applicable accompanying application). Your eligibility 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 denied as a result of the same-sex nature of your marriage.
Q. I am a U.S. citizen who is engaged to be married to a
foreign national of the same sex. Can I file a fiancé or fiancée
petition for him or her?
A2. Yes. You may file a Form I-129F. As long as all other immigration
requirements are met, a same-sex engagement may allow your fiancé to
enter the United States for marriage.
Q. My spouse and I were married in a U.S. state or a foreign
country that recognizes same-sex marriage, but we live in a state that
does not. Can I file an immigrant visa petition for my spouse?
A: Yes. As a general matter, the law of the place where the marriage
was celebrated determines whether the marriage is legally valid for
immigration purposes. Just as USCIS applies all relevant laws to
determine the validity of an opposite-sex marriage, we will apply all
relevant laws to determine the validity of a same-sex marriage.
Q. What about immigration benefits other than for
immediate relatives, family-preference immigrants, and fiancés or
fiancées? In cases where the immigration laws condition the benefit on
the existence of a “marriage” or on one’s status as a “spouse,” will
same-sex marriages qualify as marriages for purposes of these benefits?
A. Yes. Under the U.S. immigration laws, eligibility for a wide range
of benefits depends on the meanings of the terms “marriage” or
“spouse.” Examples include (but are not limited to) an alien who seeks
to qualify as a spouse accompanying or following to join a
family-sponsored immigrant, an employment-based immigrant, certain
subcategories of nonimmigrants, or an alien who has been granted refugee
status or asylum. In all of these cases, a same-sex marriage will be
treated exactly the same as an opposite-sex marriage.
Q. Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization?
A. Yes. As a general matter, naturalization requires five years of
residence in the United States following admission as a lawful permanent
resident. But, according to the immigration laws, naturalization is
available after a required residence period of three years, if during
that three year period you have been living in “marital union” with a
U.S. citizen “spouse” and your spouse has been a United States citizen.
For this purpose, same-sex marriages will be treated exactly the same
as opposite-sex marriages.
Q: My foreign national spouse has children. Can they also be included with my spouse's case?
A. Yes, the children of foreign national spouses can be considered
"step-children" of the U.S. citizens and can therefore benefit
from a petition filed on their behalf in the IR2
category. In other categories, stepchildren acquired through same
marriage can qualify as beneficiaries (F2A) or
for derivative status (F3, F4, E1-E4, or DV). You and your spouse must
married before the child turned 18.
U.S. Visas for Same-Sex Spouse: http://travel.state.gov/visa/frvi/frvi_6036.html
2. Diversity Visa Program: http://travel.state.gov/visa/immigrants/types/types_1322.html
3. USCIS FAQ: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7 543f6d1a/?vgnextoid=2543215c310af310VgnVCM100000082ca60aRCRD&vgnextchannel= 2543215c310af310VgnVCM100000082ca60aRCRD
4. State Department Visa Policy Cable On DOMA Guidance For Visa Posts Worldwide: http://travel.state.gov/pdf/Next_Steps_On_DOMA_Guidance_For_Posts_August_2013.pdf