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ImmigrationINFO Immigration News For Our Community…Same-Sex Marriages – More Questions & Answers

Jul 28, 2013 News

 

Attorney Gail Seeram,    
As a follow-up to our previous article discussing the implications of the U.S. Supreme Court decision granting federal benefits to same-sex marriages, U.S. Citizenship and Immigration Services (USCIS) has released the following questions and answers addressing how they will apply this new mandate to pending and new immigration cases that involve same-sex marriages.
Q1.  Do I have to wait until USCIS issues new regulations, guidance or forms to apply for benefits based upon the Supreme Court decision in Windsor?(
A1.  No.  You may apply right away for benefits immediately for which you believe you are eligible.
Q2. My Form I-130, or other petition or application, was previously denied based on my same-sex marriage.  What should I do?(
A2.  USCIS will reopen those petitions or applications that were denied solely because of same-sex marriage.  If such a case is known, please notify USCIS.
Q3. What about immigration benefits other than for immediate relatives, family-preference immigrants, and fiancés or fiancées?  In cases where the immigration laws condition the benefit on the existence of a “marriage” or on one’s status as a “spouse,” will same-sex marriages qualify as marriages for purposes of these benefits?(
A3. Yes.  Under the U.S. immigration laws, eligibility for a wide range of benefits depends on the meanings of the terms “marriage” or “spouse.”  Examples include (but are not limited to) an alien who seeks to qualify as a spouse accompanying or following to join a family-sponsored immigrant, an employment-based immigrant, certain subcategories of nonimmigrants, or an alien who has been granted refugee status or asylum.  In all of these cases, a same-sex marriage will be treated exactly the same as an opposite-sex marriage.
Q4. Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization?(
A4. Yes.  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 you have been living in “marital union” with a U.S. citizen “spouse” and your spouse has been a United States citizen.  For this purpose, same-sex marriages will be treated exactly the same as opposite-sex marriages.
Q5. I know that 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,” will same-sex marriages count for that purpose?(
A5.Yes.   Whenever the immigration laws condition eligibility for a waiver on the existence of a “marriage” or status as a “spouse,” same-sex marriages will be treated exactly the same as opposite-sex marriages.

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