Same-sex couples are now eligible to petition for marriage-based green cards and dependent visas on the same basis as opposite-sex couples. On June 26, 2013, in United States v. Windsor, the US Supreme Court struck down Section 3 of the 1996 Defense of Marriage Act (DOMA), which had prohibited the US federal government from providing federal benefits to same-sex couples. Since US immigration law is federal (national), prior to Windsor, DOMA prevented same-sex couples from seeking US immigration benefits based on marriage.
Same-sex couples do not have to live in a marriage equality state to obtain US immigration benefits. However, they do need to have married in a country or a US state where same-sex marriage was valid on the date of the marriage. At this time, it is still unclear whether the US will extend immigration benefits to same-sex couples who are not married, but who are in a civil union or domestic partnership. Until the federal government issues further guidance on this issue, the most certain route would be to marry first in a marriage-equality country or state, and then to file a marriage-based green card petition.
If the non-US spouse is living outside the US and the couple are not legally married, one option is to bring the non-US spouse to the US pursuant to a K-1 fiancé(e) petition through the US consulate in the non-US spouse’s country of residence. The K-1 visa requires a showing that the couple be in a bona fide relationship. Once a K-1 visa is granted, the couple must then marry within 90 days of the K-1 visa holder’s entry into the US.
Another option when the non-US spouse is living outside the US and the couple are still unmarried would be to first marry in a country outside the US where same-sex marriage is legal, then file a green card petition through the National Visa Center (NVC) and the US Consulate.
If both spouses in the couple are living outside the US, note that before filing a green card petition based on marriage, the US spouse must first either establish residence or establish the intent to take up residence in the US. Also, those who obtain a green card are required to actually reside in the US; long absences may cause a US lawful permanent resident to lose the green card.
Please see our Same-Sex Marriage Immigration FAQ for more information.