U.S. Citizenship and Immigration Services (USCIS) will now accept petitions based on a same-sex marriage in the same manner as any other legal marriage, following this summer's landmark Supreme Court ruling finding the Defense of Marriage Act (DOMA) unconstitutional. The couple will still need a valid marriage certificate showing their marriage was legal in the state or country where it occurred, but they do not have to live in a state that recognizes same-sex marriage to qualify for immigration benefits.
What the policy change means for same-sex couples and their families
Same-sex couples will finally receive the same benefits that are available to opposite gender couples. The policy change is immediate and provides many immigration benefits to same-sex couples that were not previously available to them, such as:
Green card petitions ― A citizen or permanent resident of the U.S. may now file a Form I-130 petition for permanent residence status for their same-sex spouse, as well as Form I-485 adjustment of status. The same eligibility requirements as any marriage-based green card petition will still have to be met, but the petition will not be denied for reason of same-sex nature of the marriage.
K- 1 Fiancée visa petitions ― A U.S. citizen can file for a K-1 visa for their same-sex fiancée.
L-2, H-4 and other nonimmigrant derivative visas ― The same-sex spouse of a foreign national with a valid employment based or student visa such as an L-1, H-1B, E-1/2, or J-1 can obtain a derivative visa and accompany their same-sex spouse to the U.S.
What about petitions that have already been denied based on DOMA?
USCIS has also announced it will review and reopen previously denied petitions, when those denials were based solely on the same-sex status of the relationship pursuant to DOMA. This will include the primary petition, as well as accompanying applications such as a work authorization permit that was denied based on the denial of the adjustment of status petition filed by the same-sex spouse.
The new procedures make it all the more possible for all families to pursue their American dream. Despite the change in procedure, same-sex couples applying for a green card still need their petition to be prepared with the same attention to detail as any other couple. This can best be provided by a qualified immigration law attorney.