Statement from Secretary of Homeland Security Janet Napolitano, July 1, 2013: “After the June 2013 Supreme Court decision 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 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.” USCIS Same-Sex Marriage FAQ Update of August 7, 2013, is below.
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 denied as a result of the same-sex nature of your marriage.
A2: Yes. You may file a Form I-129F. As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé or fiancée to enter the US for marriage.
A3: Yes. As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Just as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage.
A4: No. You may apply right away for benefits for which you believe you are eligible.
A5: USCIS will reopen those petitions or applications that were denied solely because of DOMA Section 3. If such a case is known to us or brought to our attention, USCIS will reconsider its prior decision, as well as reopen associated applications to the extent they were also denied as a result of the denial of the Form I-130 (such as concurrently filed Forms I-485).
Once your I-130 petition is reopened, it will be considered anew–without regard to DOMA Section 3–based upon the information previously submitted and any new information provided. USCIS will also concurrently reopen associated applications as may be necessary to the extent that they also were denied as a result of the denial of the I-130 petition (such as concurrently filed Form I-485 applications).
Additionally, if your work authorization was denied or revoked based upon the denial of the Form I-485, the denial or revocation will be concurrently reconsidered, and a new Employment Authorization Document (EAD) issued, to the extent necessary. If a decision cannot be rendered immediately on a reopened adjustment of status application, USCIS will either (1) immediately process any pending or denied applciation for employment authorization, or (2) reopen and approve any previously revoked application for employment authorization. If USCIS has already obtained the applicant’s biometric information at an Application Support Center (ASC), a new Employment Authorization Document (EAD) will be produced and delivered without any further action by the applicant. In cases where USCIS has not yet obtained the required biometric information, the applicant will be scheduled for an ASC appointment.
No fee will be required to request USCIS to consider reopening your petition or application pursuant to this procedure. In the alternative to this procedure, you may file a new petition or application to the extent provided by law and according to the form instructions including payment of applicable fees as directed.
A6: Yes. Under the US immigration laws, eligibility for a wide range of benefits depends on the meanings of the terms “marriage” or “spouse.” Examples include (but are not limited to) an alien who seeks to qualify as a spouse accompanying or following to join a family-sponsored immigrant, an employment-based immigrant, certain subcategories of nonimmigrants, or an alien who has been granted refugee status or asylum. In all of these cases, same-sex marriages will be treated exactly the same as opposite-sex marriages.
A7: There are some situations in which either the individual’s own marriage, or that of his or her parents, can affect whether the individual will qualify as a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a US citizen or of a Lawful Permanent Resident (LPR). In these cases, same-sex marriages will be treated exactly the same as opposite-sex marriages.
A8: Yes. As a general matter, naturalization requires five years of residence in the US following admission as a lawful permanent resident. But, according to the immigration laws, naturalization is available after a required residence period of three years, if during that three year period you have been living in “marital union” with a US citizen “spouse” and your spouse has been a US citizen. For this purpose, same-sex marriages will be treated exactly the same as opposite-sex marriages.
A9: Yes. Whenever the immigration laws condition eligibility for a waiver on the existence of a “marriage” or status as a “spouse,” same-sex marriages will be treated exactly the same as opposite-sex marriages.