USCIS Issues New Guidance on Same-Sex Marriage

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The USCIS issued new guidance on same-sex marriage last July 26 which answers frequently asked questions on filing of petitions, applying for immigration benefits, reopening previously denied petitions, changes in eligibility, residency requirements for naturalization and inadmissibility waivers.

 

The guidance is intended to effect a quick implementation of the Supreme Court decision in U.S. v. Windsor which declared Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional and ensure that same sex couples are given the same immigration benefits as all other couples.

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. The USCIS will adjudicate the petition and the visa application or adjustment of status in the same manner that it adjudicates a petition or application filed on behalf and by an opposite-sex spouse. Also, a U.S. citizen who is engaged to a foreign national of the same sex may file a petition on Form I-129F on behalf of his/her fiancé/fiancée so long as other immigration requirements are satisfied.

The guidance further states that the validity of a marriage for immigration benefits is determined by the law of the place where the marriage took place and not the place of domicile. This rule is “subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage.” However, this would depend on “individual, fact-specific circumstances”. Further guidance will be issued on this.

Same-sex marriage is presently recognized in the District of Columbia and 13 states, namely, California, Connecticut, Delaware, Iowa, Maine, Massachusetts, Maryland, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.

The USCIS is currently in the process of identifying I-130 petitions which were denied after February 23, 2011 solely on the ground of DOMA and will attempt to notify petitioners that their cases will be reopened. However, petitioners are advised to email USCIS at This email address is being protected from spambots. You need JavaScript enabled to view it. notifying the agency that their cases should be reopened. Additional evidence will be accepted during this process.

For those whose petitions were denied before February 23, 2011, it is required that petitioners email the agency at This email address is being protected from spambots. You need JavaScript enabled to view it. before March 31, 2014 for the USCIS to reopen their cases. It will reopen all applications associated with the I-130 petition including applications for adjustment of status and work authorization.

The USCIS guidance also clarifies that the spouse of a same-sex marriage is now eligible to benefit from the status as spouse accompanying a family sponsored or an employment-based immigrant or spouse of a nonimmigrant, asylee or refugee. Also, the effect of same-sex marriage on the qualifying relationship as a “child,” “son or daughter,” “parent,” or “brother or sister” for immigration purposes will be the same as opposite-sex marriage.

The residency requirement for naturalization for the same-sex spouse of a U.S. citizen will be three years so long as the couple were living in marital union three years immediately preceding the filing of the N-400 application.

Eligibility for waivers of inadmissibility on the basis of the status as spouse of a U.S. citizen or lawful permanent resident also extends to the same-sex spouse and the case shall be adjudicated in exactly the same manner as those of opposite-sex couples.

(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.)