Department of State FAQs on Same-Sex Marriage Benefits

The U.S. Department of State (DOS) has issued a set of Frequently Asked Questions (FAQs) addressing issues pertaining to the availability of immigration benefits to same-sex spouses. Similar to the FAQs recently published by the U.S. Citizenship and Immigration Services (USCIS), as discussed in the NewsBrief, Clarification on Immigration Benefits for Same-Sex Couples (01.Aug.2013), this is all part of the implementation of the U.S. Supreme Court’s landmark decision, U.S. v. Windsor, which struck down key parts of the Defense of Marriage Act (DOMA).

Background: DOMA Provisions Unconstitutional

As explained previously on MurthyDotCom, in U.S. v. Windsor, the U.S. Supreme Court declared a major component of DOMA to be unconstitutional. The net result of this decision from an immigration perspective is that gay and lesbian couples are to be accorded the same respect and benefits as opposite-sex couples. More information and analysis is available in the NewsBrief, DOMA and Immigration Benefits (08.Jul.2012).

DOS FAQs Explains New Policy at Consulates

The DOS FAQs clears the way for same-sex couples to obtain benefits at U.S. consulates. The DOS is responsible for overseeing U.S. embassies and consulates, including the issuance of immigrant and nonimmigrant visas at these posts. As explained in these FAQs, the DOS takes the position that any benefit that could be obtained via an opposite-sex marriage can now be obtained through a valid same-sex marriage. Prior to the issuance of the FAQs, there were reports of such visa applications being held awaiting this guidance.

State of Planned Residence Not a Barrier

These FAQs provide a clear answer to the important question of whether the DOS will take into consideration the laws related to same-sex marriages in the state of planned residence in determining whether to issue a visa. The DOS definitively answered that it is only necessary for the marriage to be valid in the jurisdiction where the marriage occurred. This is a key clarification, as, until now, the relevant government agencies had failed to fully address this question.

Fiancé/e Option

The FAQs also provide an option for some individuals who reside in countries where same-sex marriage is not permitted. A U.S. citizen engaged to such an individual may now be able to sponsor the person by filing a K-1 fiancé/e petition with the USCIS. Once approved, the U.S. consulate in the foreign national’s home country can issue the K-1 visa to the individual, notwithstanding the laws of that particular country.

Nonimmigrant Visa Options

Most nonimmigrant visa classifications have a parallel dependent category for the spouse and minor children of the principal applicant (e.g., H-4 category for dependents of H1B workers). This dependent benefit option is now extended to same-sex spouses, as well as any qualified stepchildren. The standard procedures in these dependent categories remain in place in terms of any required filings or supporting documents.

Conclusion

With the release of these DOS FAQs, same-sex couples are now largely able to avail themselves of the full scope of immigration benefits that have long been available to opposite-sex couples. The Murthy Law Firm will continue to monitor important developments related to this topic.

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