Same-Sex Spouses: U.S. Immigration Benefits Eligibility (Updated Aug. 3)

This article covers same-sex spouses’ eligibility for U.S. immigration benefits in light of the Supreme Court decision holding the Defense of Marriage Act (DOMA) to be unconstitutional.

Updated Aug. 3: Updates in Blue

The Supreme Court Ruling

In an historic ruling, the U.S. Supreme Court has held that same-sex spouses are eligible for the same benefits and protections under federal law as heterosexual spouses. This includes immigration law benefits. United States v. Windsor, decided on June 26, held that Section 3 of the Defense of Marriage Act (DOMA) is an unconstitutional exercise of federal authority and a violation of the equal protection guarantee of the U.S. Constitution.

Originally signed into law by President Bill Clinton in 1996, DOMA has denied lawfully married gay and lesbian couples benefits and protections under more than 1,100 federal provisions. Among the benefits denied by DOMA were the right of gay and lesbian American citizens to sponsor their same-sex spouses for a green card and to file petitions to bring a fiancé(e)  to the United States. DOMA had prohibited the federal government from recognizing same-sex marriages, regardless of whether they were legally valid in certain states or in other countries, and from conferring federal benefits on same-sex spouses that are enjoyed by heterosexual spouses. With Section 3 ruled unconstitutional, there will be “immigration equality”: immigration laws will now treat all families equally, regardless of sexual orientation.

Writing for the majority in a 5-4 split decision, Justice Kennedy stated:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment” to the U.S. Constitution.

The Supreme Court’s ruling is the culmination of years of tireless efforts of determined couples and civil rights activists who stood up for equal rights. Most recently, Senate Judiciary Committee chairman Pat Leahy (D-VT) tried to offer an amendment to S.744, the “Gang of Eight” immigration bill that just passed the Senate, which would have effectively revoked DOMA for purposes of immigration benefits eligibility, but he withdrew it after Senate Democratic leaders and Gang of Eight senators asked him to do so for fear that the political toxicity of gay marriage and immigration issues would have been too much to carry the bill to passage.

The Court’s ruling will reunite same-sex couples who have been torn apart and forced to live in separate countries, and it will end the exile of gay and lesbian Americans who have been forced to live abroad in order to be with the person they love.

The Court’s ruling will also eliminate the need for lawyers to advise binational couples that marriage may hurt their immigration options. In the past, with no option for marriage visas, foreign partners often had to enter the U.S. with B1/B2 (visitor) or F (student) visas, which require compelling ties to one’s home country as evidence of nonimmigrant intent–marriage to a U.S. citizen could doom those visa applications.

U.S. Citizenship and Immigration Service Implementation

An American man in Florida and his husband, who is from Bulgaria, have become the first same-sex married couple to have an approved Form I-130, Petition for Alien Relative, an immigration milestone. The New York Times reports that the notice of approval of the I-130 was issued by e-mail on June 28 to Traian Popov, a Bulgarian immigrant who lives with his American spouse, Julian Marsh, in Fort Lauderdale, Florida.

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.

On July 1, Secretary of Homeland Security Janet Napolitano announced that USCIS will “review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” For example, a U.S. citizen may file a Form I-130, Petition for Alien Relative, on behalf of a same-sex spouse seeking permanent resident status.

USCIS updated its announcement on July 26, 2013 to provide more specifics. See the below Frequently Asked Questions Section.

U.S. Customs and Border Protection Implementation

The agency has not issued any guidance to ports of entry, leaving each port to decide on their own whether to allow admission of an individual based on a same-sex marriage. Until guidance is issued, the best practice may be to seek the advice from the port director before seeking entry to the U.S.

U.S. Department of State Implementation

Secretary of State Kerry announced on August 2 that “effective immediately, when same-sex spouses apply for a visa, the Department of State will consider that application in the same manner that it will consider the application of opposite-sex spouses.” The Department accordingly deleted from its guidance manual for officers (the Foreign Affairs Manual) accordingly the provision (9 FAM 40.1 N1.1 (a)) which limited “marriage” to a legal union of “one man and one woman.” And the Department issued a FAQ on U.S. Visas for Same-Sex Spouses.

U.S. Department of Justice Implementation

On July 17, 2013, the Board of Immigration Appeals, which is part of the U.S. Department of Justice, and hose decisions are binding on all DHS officers and employees and immigration judges, issued its first post-Windsor published decision. Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA 2013). The BIA stated, “The Supreme Court’s ruling in Windsor has therefore removed section 3 of the DOMA as an impediment to the recognition of lawful same-sex marriage and spouses if the marriage is valid under the laws of the State where it was celebrated.”

Frequently Asked Questions

1. Can a U.S. citizen who lives in a state that does not recognize same-sex marriage file a Form I-130 or a Form I-129F, Petition for Alien Fiancé(e)?

Yes. Secretary of Homeland Security Napolitano announced stated that the law of the place where the marriage has taken or will take place is key, not the law of the state of residence:

Yes, you can file the petition.  In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes.

The State Department’s FAQ agrees. And the Board of Immigration Appeals has agreed in Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA 2013). In that case, the couple married in Vermont and resided in New Jersey, a state that does not offer full marriage equality.

President Obama has even weighed in on this question:

It’s my personal belief — but I’m speaking now as a President as opposed to as a lawyer — that if you’ve been married in Massachusetts and you move someplace else, you’re still married, and that under federal law you should be able to obtain the benefits of any lawfully married couple…. But I’m speaking as a President, not a lawyer.

It’s worth noting that the USCIS FAQ originally mentioned an exception to the general rule:

That general 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. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.

But the FAQ has been updated to delete reference to the exception:

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..

The “exception” that USCIS had referred to are for instances in which the state of residence has strong public policy reasons for not recognizing a marriage entered into legally in another jurisdiction. For example, where residents of State A are close relatives whose marriage would be considered incestuous and illegal go to State B to marry but then return to their State A residence, USCIS may not recognize the marriage as legal. So LGBT advocates feared that the “exception” mentioned in the USCIS FAQ related to states like Wisconsin, which has a constitutional amendment barring same-sex marriages and a statute declaring void for purposes of state law marriages by persons residing in Wisconsin who wed out of state but intend to continue to reside in-state. In any case, it appears the “exception” to recognizing out-of-state same-sex marriages appears to have been deleted.

2. Can a U.S. citizen living abroad file a Form I-130 on behalf of same-sex spouse?

Yes. For more about the requirements and procedures, see Issues for U.S. Expats Filing a Form I-130, Immigrant Petition for Alien Relative.

3. My Form I-130, or other petition or application, was previously denied solely because of DOMA.  What should I do?

According to the USCIS announcement, the agency will  reopen those petitions or applications that were denied after February 23, 2011, solely because of DOMA section 3. USCIS says it’s trying to identify those cases and notify the parties if additional evidence is required. USCIS has provided an email address to bring such cases to its attention and says that you must do so by March 31, 2014. No fee is required to reopen such cases.

4. When might it be preferable to file a Form I-129F, Petition for Alien Fiancé(e), to qualify for a K-1 visa?

If the foreign national fiancé(e) resides in a country, like China, that does not allow same-sex marriage and he/she is unable to get married in another country, the K-1 would be appropriate.  That is a huge benefit to same-sex couples because most of their fiancé(e)s probably do reside in countries without marriage rights.

The application requires the couple to demonstrate that they have a “bona fide” relationship. After the visa is granted, the couple is required to marry within 90 days of the foreign partner’s entry into the U.S. Once married, the couple can file the marriage-based Form I-485, Application to Adjust Status, from within the United States.

5. What about visas for the foreign spouse or fiancé(e)’s children?

Generally, when a U.S. citizen files a Form I-130 or Form I-129F for a spouse or fiancé(e), the foreign spouse’s children can qualify to immigrate as the citizen’s “stepchildren.” (If you and your spouse planned to have a child together, you probably consider the child to be your “child”–not your “stepchild”–but the immigration law classifies the child as your “stepchild” if you are not a biological parent.)

For an I-130 of behalf of a citizen’s stepchild, the couple must have married before the child turned 18, and the child must be under 21 and unmarried at the time the I-130 is filed in order to get a green card at the same time as the parent’s marriage-based green card.

For the I-129F, the citizen’s stepchild may obtain a K-2 visa so long as he or she is under age 21 at the time of issuance.

6. Can a foreign national coming to the U.S. in nonimmigrant status (e.g., F-1 student, H-1B specialized knowledge worker, J-1 exchange visitor, L-1 intracompany transferee, O-1 extraordinary ability) obtain a dependent visa (e.g., F-2, H-4, J-2, L-2, O-3) for a same-sex spouse?

Yes.

7. What other immigration benefits may a same-sex spouse qualify for?

Immigration equality will cover a range of benefits. For example, eligibility for provisional waivers for persons who entered the United States without inspection; eligibility for permanent residence for battered spouses under the Violence Against Women Act (VAWA), which despite its title has never been limited to women; and even naturalization, for example as an adopted child in a same-sex marriage, to qualify for the reduced three-year residence requirement when living with a U.S. citizen spouse, or to qualify for “expeditious naturalization” under section 319(b) as the spouse of a U.S. citizen employed abroad.

8. What evidence should be filed to prove that a same-sex marriage is valid, meaning entered into for purposes of sharing ones’ lives together, rather than merely for immigration purposes?

The evidence will be similar to what heterosexual spouses submit. See Top 10 List: How to Document Your Valid Relationship for Immigration Purposes.

The potential signs of a fraudulent marriage that the government looks for will be similar to signs that a heterosexual relationship is a sham:

• Large disparity of age, especially if the woman is older than the man.
• Inability of petitioner and beneficiary to speak each other’s language.
• Vast difference in cultural and ethnic background.
• Family and/or friends unaware of the marriage.
• Marriage arranged by a third party.
• Marriage contracted immediately following the beneficiary’s apprehension or receipt of
  notification to depart the United States.
• Discrepancies in statements on questions for which a husband and wife should have
  common knowledge.\
• No cohabitation, other than educational or professional reasons, especially if the parties
  don’t visit each other often.
• Beneficiary is a friend of the family.
• Petitioner has filed previous immigration petitions, including but not limited to petitions
  for prior foreign spouses.
• Marriage not recorded in personnel records for one or both spouses.

In addition, some same-sex petitioners and beneficiaries may have not disclosed their sexual orientation to their friends, family, landlord, financial institutions, employer, etc. meaning that a bona fide relationship might be hard to prove. Many U.S. states and localities have no anti-discrimination laws covering sexual orientation. For others, it might actually not be safe to openly admit they are gay or lesbian, much less identify a spouse.

Note that if the marriage was celebrated before the Windsor decision it would be difficult for the government to argue it was entered into solely for purposes of immigration: at the time of marriage, there was no immigration benefit eligibility under U.S. law.

Also note that if either or both spouses previously filed IRS income tax returns as “single” because the marriage wasn’t recognized under DOMA, you may want to speak with a tax advisor about filing amended returns to show your status as “married filing jointly” or “married filing separately.”

For more thoughts about documenting the validity of a marriage where one spouse is from China, see here.

9. Is it possible to request that the immigration case be expedited?

In appropriate cases, it may be possible to request that an immigration case on behalf of a spouse or fiancé be expedited on the basis that the delay in filing was due to the Government’s unconstitutional refusal to recognize the validity of a same-sex relationship, causing hardship to the couple.

10. Does a civil union or domestic partnership count?

The answer is not yet clear. The Department of State FAQ says not “at this time.” USCIS has not issued guidance.

11. What special issues should be expected for same-sex spouses applying for visas at the U.S. Embassy in Beijing or another U.S. Consulate in China?

See Visa Applications for Same-Sex Spouses at the U.S. Embassy and Consulates in China.