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Same-sex couples are now eligible 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). This prohibited the 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 receiving marriage-based US immigration benefits.
Same-sex couples don’t have to live in a marriage equality state to obtain US immigration benefits. However, they must have married in a country or US state where same-sex marriage was valid on the marriage date. It remains unclear if the US will extend immigration benefits to same-sex couples who aren ‘t married, but who are in a civil union or domestic partnership.
If the non-US spouse is living outside the US and the couple aren’t legally married, one option is to bring the non-US spouse to the US pursuant to a K-1 fiancé(e) petition. For this, the US spouse must petition through a US consulate in the non-US spouse’s country of residence. The K-1 visa requires the couple to demonstrate a bona fide relationship. Upon issuance of a K-1, the couple must marry within 90 days of the K-1’s US entry.
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, the couple would file a green card petition through the US Consulate.
If both spouses are living outside the US, before filing a marriage-based green card petition, the US spouse must first establish residence or establish the intent to reside in the US. Once the spouse obtains a green card, they must reside in the US. Significant absence may cause loss of the green card.