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DHS Issues Initial Guidance on Same-Sex Immigration Benefits

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supreme court 144880776On July 2, 2013, the Department of Homeland Security (DHS) issued some initial guidance regarding same-sex immigration benefits following the recent Supreme Court decision, United States v. Windsor, overturning Section 3 the Defense of Marriage Act (DOMA) on June 26, 2013.

Secretary of Homeland Security Janet Napolitano made the following statement: “After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, 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. To that end, effective immediately, I have directed US 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.”

DHS also issued this very brief FAQ concerning same-sex immigration benefits following the Windsor decision:

Q1: I am a US 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 US 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.

For more information on same-sex immigration benefits, see our Same-Sex Marriage Immigration FAQ. See also our pages on Marriage-Based Green Card petitions and K Visas for Spouses and Fiancé(e)s of US Citizens.

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