Implementation of Immigration Benefits for Same-Sex Marriages

As we reported last month, on June 26, 2013, the Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional.  With the end of DOMA, the immigration agencies have begun the task of implementing the Windsor decision and married LGBT couples can now access the marriage-based immigration benefits and other forms of relief from removal.

In an effort to clarify the eligibility and requirements, USCIS has issued Frequently Asked Questions (“FAQ”) pertaining to same-sex marriages. The agency indicated that it will treat a same-sex marriage “exactly the same as an opposite-sex marriage,” for immigration benefits. USCIS also stated that new applications and petitions based on same-sex marriages may be filed immediately without waiting for USCIS to issue new regulations.

New Applications

USCIS indicated that U.S. citizens and lawful permanent residents in a same-sex marriage with a foreign national may immediately file a family based immigrant petition (Form I-130) on behalf of the spouse. Also U.S. citizens who are engaged to be married to a foreign national of the same sex may file a Form I-129F and enter the United States for marriage in a K-1 fiancé status.

In cases of spouses married in a U.S. state that recognizes same-sex marriage, but they now live in a state that does not, USCIS indicated that it will look to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes.

Previously Denied Petition

USCIS will reopen cases it denied solely because of Section 3 of DOMA after February 23, 2011. The agency will “make a concerted effort” to identify the petitions and notify the petitioner, at the last known address, of reopening and request updated information in support of the application. Any related application, “such as a concurrently filed I-485,” also will be reopened. In addition, any person with an I-130 that was denied because of DOMA, regardless of the date of the denial (including those denied prior to February 23, 2011), can contact USCIS directly at USCIS-626@nulluscis.dhs.gov.

However, if the I-130 was denied before February 23, 2011 (when USCIS began to keep a list of denials), then the petitioner must notify USCIS before March 31, 2014 at USCIS-626@nulluscis.dhs.gov to request reopening. No fee will be required to reopen any of these applications.

Conclusion

The FAQ ends several weeks of speculations on USCIS’s treatment of same-sex marriages for immigration benefits in the wake of the Windsor Supreme Court’s decision. We will continue monitoring this topic and provide any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.