Reuben S. Seguritan

Atty Gen. Reports on Benefits to Same-Sex Married Couples

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The Attorney General has just released a memorandum to the President detailing how the different federal agencies have implemented the Supreme Court decision in United States v. Windsor.

 

The Supreme Court in its Windsor ruling on June 26, 2013 found Section 3 of the Defense of Marriage Act (DOMA) unconstitutional under the equal protection clause of the Constitution. The law had restricted the interpretation of “marriage” and “spouse” to apply only to opposite-sex married couples prohibiting federal immigration authorities and other federal officials from recognizing same-sex marriage.

The Attorney General in his memo reports that the “the impact of the Windsor decision and the government-wide implementation efforts, cannot be overstated.” Among the benefits now enjoyed by same-sex married couples include being able to file joint tax returns with the Internal Revenue Service. Same-sex spouses of military service members can now receive the same benefits as opposite-sex spouses and same-sex spouses of federal employees are also eligible for health insurance and other benefits.

The Department of Homeland Security through the USCIS and the Department of State provide same-sex married couples the same immigration benefits as opposite-sex married couples. The USCIS looks to the law of the place where the marriage took place and not the place of domicile to determine the validity of the marriage.

A U.S. citizen or a lawful permanent resident who is in a same-sex marriage can now file an I-130 petition on behalf of his/her same-sex spouse.

On June 28, 2013, the first I-130 petition for an alien relative filed by a same-sex married couple was approved. Petitions or applications denied solely because of Section 3 of DOMA were reopened. USCIS undertook a concerted effort to identify and reopen I-130 petitions filed by U.S. citizens denied solely based on Section 3 of DOMA to allow their same-sex spouses to adjust their immigration status in the U.S.

A same-sex spouse is eligible as derivative beneficiary of the principal beneficiary who has been granted family-sponsored or employment-based immigrant visa, refugee status or asylum.

Stepchildren resulting from same-sex marriages may be sponsored by the U.S. citizen or lawful permanent resident parent. They are also eligible for derivative status of family-based preference petitions, employment-based immigrant petitions and the diversity visa. However, just like stepchildren of opposite-sex married couples, in order to qualify for the benefit, the marriage must have taken place before the child turned 18.

Moreover, where eligibility for discretionary waivers of certain inadmissibility grounds is conditioned on marriage or status as spouse, same-sex couples will be treated in exactly the same manner as opposite-sex couples.

Just like the opposite-sex spouse, the residency requirement for naturalization for the same-sex spouse of a U.S. citizen is three years. The same-sex spouse must also be living in marital union with the U.S. citizen spouse three years immediately preceding the N-400 application in order to be eligible.

Also, U.S. embassies and consulates abroad are adjudicating visa applications that are based on same-sex marriages in the same way as applications based on opposite-sex marriages.

U.S. citizens who are engaged to a foreign national of the same-sex may petition their fiancé(e) for a K visa. Same-sex spouses and stepchildren may also accompany the principal applicant who is coming to the U.S. to work or to study. Those accompanying students on F-1 or M-1 visas will need to obtain I-201A before applying. Spouses of J-1 exchange visitors will need to obtain an approved DS-2019.

 

 

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281.)

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