This week, the Supreme Court of the United States struck down the Defense of Marriage Act (DOMA) as unconstitutional. This decision will impact thousands of benefits for same-sex couples, and one of particular interest to us is immigration benefits.
As a result of the decision, USCIS and other US federal agencies that deal with immigration benefits must now recognize legally valid marriages between same-sex couples. A key benefit that comes to mind is of course a US citizen spouse sponsoring his/her same-sex spouse, which was not possible under DOMA. There are other potential immigration-related benefits now as well, including for example, an H-1B nonimmigrant may now be able to bring his/her spouse to the US in H-4 status, if they are legally married.
The decision is brand-new of course, and USCIS has not had time yet to give any particular guidance on immigration filings for same-sex couples. That said, here is a summary of your immigration rights now that DOMA is gone:
Q: When can we file?
A: We can begin to file petitions and applications for same-sex couples now. Although the decision will not be finalized for 25 days, there is otherwise no need to wait to file with USCIS.
Q: What if my partner and I are not married yet?
A: You must be legally married to benefit from immigration benefits. At this time, it appears that civil unions and domestic partnerships will not be considered. You can find information on where you can marry, and the specific requirements here: http://immigrationequality.org/issues/couples-and-families/where-can-we-marry/. Remember, there are not residence requirements for the US states that recognize marriage equality. That is, if you live in a state that does not recognize marriage equality, you can get married in another state that does, without having to live there. Destination wedding, anyone?
Q: What if I got married outside the US? Or what if we want to get married outside the US?
A: It is also possible to file for immigration benefits based on a same-sex marriage that was celebrated outside the US, as long as that marriage is considered legal where it was celebrated. Information on countries that recognize marriage equality is also found in the link above.
Q: What is the immigration process for same-sex couples?
A: Right now, the process would be the same as it is for heterosexual couples. Of course the process will depend on your specific situation – if you are a US citizen filing for your foreign national spouse, if you are not yet married and need to file a fiancé visa, etc. Please contact our office at 804-396-3412 to set a consultation to discuss your specific situation, and to devise a successful immigration strategy.
Q: Do I have to use an immigration attorney for my filings?
A: The decision of whether to use an attorney is always a person decision based on a variety of factors. That said, it would be wise to at least consult with an experienced immigration attorney prior to filing for same-sex couple immigration benefits, since this is a new phenomenon for USCIS and the other agencies. Even more so than with other filings, it will be important to have your petition or application well-documented and clearly organized to avoid processing delays or erroneous denials. It will take some time for USCIS to give proper training to its officers and even once that is done, it’s possible due to the nature of the matter that there will be mis-understandings in the filings that may cause delays, otherwise needless requests for evidence, or erroneous denials.
The Sumner Immigration Law team has over ten years of experience filing family-based immigration cases. We are excited to now offer that same level of exceptional client service in uniting families and keeping them together for same-sex couples! You will also be pleased to know that we serve clients throughout the US; since immigration law is a federal practice, we can represent clients anywhere in the US. Contact us today to set a consultation to discuss the best solution for your immigration goals: 804-396-3412 or firstname.lastname@example.org. We look forward to hearing from you!