ImmigrationINFO…Immigration News For Our Community Ò…Same-sex Marriages Eligible for Immigration Benefits

Aug 28, 2016 News

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By Attorney Gail Seeram

Same-sex marriages that are valid under State law are eligible to apply and receive immigration benefits.  Applicants will still be required to prove to Department of Homeland Security that the marriage is bona fide, meaning good-faith and based on love and not entered into for an immigration benefit.

On June 26, 2013, the U.S. Supreme Court ruled in the case U.S. v. Windsor, that section 3 of the Defense of Marriage Act (DOMA) was unconstitutional as a violation of the constitutional guarantees of equal protection and due process.  With this decision, DOMA was removed as an impediment to the recognition of lawful same-sex marriages if the marriage is valid under the laws of the State where it was celebrated.

The U.S. Supreme Court decision was re-affirmed in the immigration case Matter of Oleg B. Zeleniak that was reviewed by the Board of Immigration Appeals on July 17, 2013 and concluded that applicants of same-sex marriages are eligible for federal immigration benefits once the marriage is lawful and good-faith.

The first state to recognize same-sex marriages was Massachusetts in 2004 – the United States has come a long way since 2004 in now recognizing same-sex marriages for purposes of the spouses receiving federal benefits (including immigration benefits).

 

Question: What type of immigration benefits can same-sex marriages receive?

Answer: Fiancé and fiancée visas, immigrant visa petitions (including based on marriage), refugee and derivative asylee status, inadmissibility and waivers of inadmissibility, removability and waiver of removability, cancellation of removal and adjustment of status.

 

Question: If I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national, can I now sponsor my spouse for a family-based immigrant visa?

Answer: Yes, you can file the petition. Your eligibility to petition for your spouse, and your 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 automatically denied as a result of the same-sex nature of your marriage.

 

Question: My spouse and I were married in a U.S. 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?

Yes, you can file the petition. In evaluating the petition, as a general matter, U.S. Citizenship & Immigration Services will look to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage.

 

Question: Can same-sex marriages reduce the residence period required for naturalization?

Answer: Yes. In general, the law requires five years of residence in the United States as a lawful permanent before someone can apply for citizenship. However, if the lawful permanent resident is married to a U.S. citizen, that residence requirement is three years. The law also requires that the permanent resident has been married to the U.S. citizen for three years, and the U.S. citizen has been a citizen for at least three years. In this manner, same-sex marriages are treated the same as opposite-sex marriages.

 

Question: 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?

Answer: 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.

 

Question: If I am seeking admission under a program that requires me to be a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful permanent resident, could a same-sex marriage affect my eligibility?

Answer: There are some situations in which either the individual’s own marriage, or that of his or her parents, can affect  whether the individual will qualify as a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful permanent resident.  In these cases, same-sex marriages will be treated exactly the same as opposite-sex marriages.

 

For more information, contact Gail Law Firm:

Email: [email protected]

Phone: 1-877-GAIL-LAW or 407-292-7730

www.MyOrlandoImmigrationLawyer.com

FREE in-office consultation – FREE Live Chat

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