Same Sex Marriage Immigration Petitions
Author: New York Immigration attorney
With the DOMA being overruled by the U.S. Supreme Court, same sex couples received an opportunity to utilize Federal Immigration benefits. It means that a U.S. citizen or permanent resident is able to sponsor his/her partner for residency in the United States. The same sex couples are able to use all Immigration venues, including family based petitions, K-1 visas for finance, waivers, motions to reopen, cancellation of removal, VAWA, etc.
Persons with outstanding orders of removal are now able to file for adjustment of status after their cases are reopened; in some cases the non -citizen partner will have to apply for a waiver in addition to the family based petitions/ adjustment of status.
In addition, after the same sex partner obtains status, he/she will be able to sponsor other family members according to the U.S. Immigration laws.
The USCIS issued FAQ regarding same sex family petitions:
Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?
A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.
Q2: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?
A2: 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. 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.
If you have questions regarding eligibility of the sponsorship and possible Immigration solutions for you and your family members, please call New York Immigration lawyer 917-885-2261.