Spouses in same sex marriages may now petition for permanent residence for their foreign born spouses. Green cards were previously denied to same sex marriage spouses, when one of the parties was foreign-born.
Same sex marriages will be treated exactly the same as opposite sex marriages for immigration benefits.
Even though a number of states authorized and recognized same sex marriages over the past few years, the federal government did not recognize such marriages under immigration law, which is federal law. Consequently, it was not possible for U.S citizens to petition for permanent residence or seek other immigration benefits for their spouses in same sex marriages.
A recent Supreme Court decision overturned Section 3 of the Defense of Marriage Act (“DOMA,”) which had prohibited the government from recognizing same-sex marriage for purposes of federal benefits programs. The 1996 law prevented same-sex spouses of federal workers from receiving coverage through their partners’ plans.
While the case before the Supreme Court was over federal benefits programs available in same sex marriage, the decision has opened the way for immigration and other federal benefits.
The USCIS are now accepting same sex marriage petitions for permanent residence for the foreign spouse as long as the marriage was entered into in a state that recognizes same sex marriage. The spouses may still request immigration benefits, even if they live in a state that does not recognize same sex marriages.
Civil unions will not be recognized as a basis for claiming federal benefits.
While the decision in DOMA will bring relief to people in same sex marriages in immigration law, there is still the maze of regulations that apply to anyone requesting permanent residence based on a marriage. One of the hidden issues is the timing of the marriage. See Marriage to U.S. Citizens
People should seek legal advice on immigration issues before jumping into a marriage in the mistaken belief that the marriage is the cure all in any immigration marriage petition.
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