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On July 2, 2013, DHS issued initial guidance regarding same-sex immigration benefits following United States v. Windsor. This case overturned Section 3 the Defense of Marriage Act (DOMA) on June 26, 2013.
DHS also issued this very brief FAQ concerning same-sex immigration benefits:
Q1: I am a US citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I sponsor my spouse for a family-based immigrant visa?
A1: Yes, you can file the petition. You may file an I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility will be determined according to immigration law. It will not be automatically denied because you are in a same-sex 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. Generally, USCIS looks to the law of the place of marriage when determining its validity for under immigration law. That is subject to some limited exceptions under which immigration agencies have considered the law of the state of residence in addition to the law of the state of marriage. Application of those exceptions may depend on particular circumstances. If necessary, we may provide further guidance on this question going forward.
See Marriage-Based Green Card petitions and K Visas for Spouses and Fiancé(e)s of US Citizens.