Following the Supreme Court's Decision in United States v. Windsor holding Section 3 of the Defense of Marriage Act (DOMA) unconstitutional, U.S. Citizenship and Immigration Services now treats same-sex married couples as spouses under the Immigration and Nationality Act.
USCIS will now accept immigrant petitions filed on behalf of foreign national same-sex spouses of U.S. citizens and lawful permanent residents, as well as accepting petitions for foreign national same-sex fiancés.
Same-sex marriage petitions will be accorded the same treatment as any other marriage petition, wherein the couple will be required to prove that the marriage is a legitimate, bona fide marriage, not solely for the purpose of obtaining Immigration benefits.
Immigration lawyer William M. Cavanaugh has the knowledge and experience necessary to greatly reduce the stress and hassles of preparing Greencard applications based on same-sex marriage. Our office is accustomed to dealing with some of the most complex immigration matters, and is dedicated to providing our clients with the attention and service they deserve.
If you are looking for an experienced Immigration Attorney in South Florida to assist you with filing for a Greencard based on a same-sex marriage, call the Law Office of William M. Cavanaugh, a full-service Immigration Law Firm located in West Palm Beach, FL for a consultation.
Petitioning for a Spouse:
A U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national can now sponsor their spouse for a family-based immigrant visa. The eligibility to petition for a spouse, and the 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 the marriage.
A U.S. citizen who is engaged to be married to a foreign national of the same sex can now file a fiancé petition for the foreign national. As long as all other immigration requirements are met, a same-sex engagement may allow the foreign national fiancé to enter the United States for marriage.
Same-sex spouses who were married in a U.S. state or a foreign country that recognizes same-sex marriage, but live in a state that does not can still file a visa petition for the foreign national spouse. 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, USCIS will apply all relevant laws to determine the validity of a same-sex marriage.
New Applications and Petitions:
Same-sex couples may apply right away for Immigration benefits for which they believe they are eligible, and do not have to wait until USCIS issues new regulations, guidance or forms to apply for benefits based upon the Supreme Court's decision in Windsor.
Same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization. As a general matter, naturalization requires five years of residence in the United States 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 the foreign national has been living in "marital union" with a U.S. citizen "spouse". For this purpose, same-sex marriages will be treated exactly the same as opposite-sex marriages.
The immigration laws allow discretionary waivers of certain inadmissibility grounds under certain circumstances. For some of those waivers, the person has to be the "spouse" or other family member of a U.S. citizen or of a lawful permanent resident. In cases where the required family relationship depends on whether the individual or the individual's parents meet the definition of "spouse," same-sex marriages will be treated exactly the same as opposite-sex marriages.