Clarification on Immigration Benefits for Same-Sex Couples01 Aug 2013
On July 26, 2013, the U.S. Citizenship and Immigration Services (USCIS) issued new and more detailed answers to Frequently Asked Questions (FAQs) on how immigration benefits based on same-sex marriages will be addressed following the landmark U.S. Supreme Court decision in U.S. v. Windsor. These FAQs address many questions same-sex couples may have about their ability to file for benefits under U.S. immigration law.
Background on DOMA and U.S. v. Windsor
In U.S. v. Windsor, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. This decision was the final appeal in the U.S. legal system and led to immediate changes under U.S. immigration law related to the granting of federal benefits, including immigration benefits, to same-sex couples. An analysis of the ruling and its implications is provided in the NewsBrief, DOMA and Immigration Benefits (8.July.2013).
No Wait Required to File for Immigration Benefits
The theme that runs through the new USCIS FAQs is that same-sex marriages generally are to be treated in the same manner as opposite-sex marriages. The USCIS also states that same-sex spouses do not need to wait for the issuance of any revised forms, regulations, or guidance before filing for U.S. immigration benefits. Based on the decision in U.S. v. Windsor, along with the instructions from President Barack Obama and Secretary of the Department of Homeland Security Janet Napolitano, the USCIS has already started approving benefits for same-sex spouses.
Immigration Benefits for Fiancé/es and Spouses
A U.S. citizen (USC) or lawful permanent resident (LPR) who is married to a same-sex partner may now file an I-130 family-based petition to sponsor the foreign national spouse for a green card. A same-sex spouse of a USC would also be eligible to file an I-485 application to adjust status based upon the I-130, assuming the foreign national is in the U.S. and all other legal and procedural requirements are met.
For a USC who is engaged to marry a same-sex partner, the I-129F, Petition for Alien Fiancé/e may now be used. Once approved, the foreign national partner can apply for a K-1 Fiancé/e visa at a U.S. embassy or consulate overseas, and then enter the United States to wed the USC petitioner. Other immigration benefits are also now potentially available because of the ruling on DOMA, including following to join benefits for family-sponsored and employment-sponsored immigrants, as well as for foreign nationals who have been granted asylum or refugee status. In addition, an I-601 request for a waiver of inadmissibility, which is generally reserved only for foreign nationals with a qualifying LPR or USC relative, has now expanded its definition of qualifying relatives to include a same-sex LPR or USC spouse.
Dependent Nonimmigrant Status Also Available
The FAQs make clear that the benefits available post-DOMA are not limited to green cards. Same-sex spouses may be eligible to apply for dependent visas (or dependent status, for individuals who are already in the United States in some other valid status), such as H-4, L-2, and F-2. As with opposite-sex couples, gay and lesbian couples will need to demonstrate that they meet the standard requirements for the requested visa or status, including evidence of the validity of the marriage where it took place.
Naturalization Applicants Eligible After Three Years of “Marital Union”
LPRs who have held permanent resident status for a period of three years, and who have been living in “marital union” with a USC spouse for three years, may be eligible to apply for naturalization. The general requirement for most other naturalization applicants is a five year period of permanent residence. However, the benefit of the three year rule is now extended to same sex marriages, under the same provisions for opposite-sex marriages.
USCIS to Reopen Previously Denied Cases
The FAQs note that the USCIS has been tracking all I-130 petitions that have been denied based on DOMA since February 23, 2011, which is the date President Obama decided not to oppose the lawsuit challenging the constitutionality of this law. The USCIS intends to unilaterally reopen all I-130 petitions and related I-485 applications that were denied based on DOMA since this date, without requiring any additional filing fees or action by the petitioners or beneficiaries in these cases. However, these applicants are encouraged to send an eMail to the USCIS at USCISemail@example.com to ensure the government processes the case. Individuals who had an I-130, I-485, or any other immigration benefit denied based on DOMA prior to February 23, 2011 can also notify the USICS via the above-referenced eMail to request that the case be reopened, but such requests must be submitted by March 31, 2014.
If an individual was denied an employment authorization document (EAD) because of DOMA, or had an EAD revoked because of this statute, the USCIS will issue a new EAD card to the individual, assuming the biometrics have already been obtained from the applicant. If biometrics are still needed, the USCIS will issue a biometric appointment notice to the individual. No new filing fees will be needed for these applications.
Continued Ambiguity for Residents of States That do not Recognize Same-Sex Marriages
For gay and lesbian couples who are legally married, but residing, or intending to reside, in a state that does not recognize such marriages, the FAQs offer the same explanation that the USCIS provided shortly after the U.S. v. Windsor decision was issued – immigration benefits can be sought and each petition will be reviewed based on “fact-specific circumstances.” The USCIS has not fully explained what this means, but the FAQs do again note that further guidance may be issued on this question.
The U.S. Supreme Court’s decision in U.S. v. Windsor continues to bring changes related to the treatment of same-sex applicants for U.S. immigration benefits. The Murthy Law Firm applauds the USCIS for acting quickly to reopen cases that were denied under DOMA, and for assisting previous applicants and petitioners without charging additional filing fees. MurthyDotCom will continue to monitor and report on updates related to the DOMA ruling.
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