DOMA and Immigration – the Green Light for Green Cards
June 26, 2013 was an important day for many citizens and potential citizens of the United States. The Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. This Section defined marriage for all federal law purposes as only a legal union between a man and a woman. Now, the federal definition of marriage must recognize “lawful marriages” of same sex couples.
Within two days, the Office of Personnel Management released a memorandum for the heads of executive departments and agencies, informing them that effective immediately, the federal government would be extending federal benefits to same sex spouses, as well as children of same sex spouses. The federal government also has been acting quickly to implement the necessary policy changes in order to be in compliance with the Supreme Court decision, and nowhere is that more obvious than within all matters related to immigration benefits.
On July 1st Department of Homeland Security Secretary Janet Napolitano directed U.S. Citizenship and Immigration Services (USCIS) “to 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.” This was soon followed by the USCIS website (www.USCIS.gov) posting a list of Frequently Asked Questions regarding immigration benefits for same-sex spouses.
On August 2nd the State Department announced its implementation of the this recent Supreme Court decision. The State Department declared that effective immediately “U.S. Embassies and Consulates will adjudicate visa applications that are based on a same sex marriage in the same way that we adjudicate applications for opposite gender spouses. This means that the same sex spouse of a visa applicant coming to the U.S. for any purpose – including work, study, international exchange, or as a legal immigrant – will be eligible for a derivative visa. Likewise, stepchildren acquired through same sex marriages can also qualify as beneficiaries or for derivative status.” In fact, Secretary of Sate, John Kerry, confirmed that effective immediately, when same sex spouses apply for a visa, the State Department will consider that application in the same manner in which it would consider the application of opposite sex spouses.
For these marriages, the State Department will be looking at where the marriage took place. Whether here in the United States, or abroad, as long as the marriage is valid in the jurisdiction where it took place, it is valid for immigration purposes without reference to the state that the same sex couple is planning on living in after entry into the United States. However, it is critical to note that these new rules will only apply to marriages, not to civil unions or domestic partnerships.
While the cost of immigration is not cheap (typically over $1,000 in filing fees, medical exams, etc.) it is a good idea to hire an attorney to help streamline the process and likely avoid any issues that could delay or sabotage the immigration of you or your loved one. Our immigration attorneys are prepared to help you navigate this new pathway to immigration.
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