The Supreme Court’s same-sex marriage ruling and immigration
Friday, August 21, 2015
On June 26, 2015, the Supreme Court handed down the Obergefell decision, granting same-sex couples the right to marry in any state in the U.S. The decision also went on to state that all individuals enjoy the same Constitutionally guaranteed rights, regardless of sexual orientation. So what effect does this have on immigration to the United States?
The federal government had already made huge strides toward recognizing same-sex unions prior to Obergefell. In the 2013 Windsor decision, the Supreme Court threw out the federal law – the Defense of Marriage Act, or “DOMA” – that defined marriage as being only between a man and a woman. This, in turn, meant that all federal agencies, including U.S. Citizenship and Immigration Services (USCIS) were compelled to recognize same-sex marriages, as long as they were valid in the jurisdictions in which they were performed.
Windsor opened the doors for USCIS to accept and process spouse-based visa petitions and applications for those in same-sex marriages, including immigrant and nonimmigrant visa benefits. Thus, for instance, any U.S. citizen or legal permanent resident (LPR) in a valid marriage to a foreign national can sponsor a spouse for a family-based visa regardless of parties’ genders.
Under USCIS rules, a U.S. citizen or LPR who is married to a foreign national can sponsor a spouse for an immigrant visa based on the same rules that apply to a heterosexual couple. So, to get a green card based on marriage, you must be legally married, whether in the U.S. or another country, be able to demonstrate that marriage is based on a genuine, bona fide relationship, and show that you will not be reliant to the U.S. government for support.
If you are a U.S. citizen engaged to a foreign national, you are eligible to file a fiancé petition. As long as all other immigration requirements are met, engagement may also allow your fiancé to enter the United States for the purpose of marriage for a period of 90 days. After being married within the 90-day visa validity period, the foreign national may then apply for a green card through a process called adjustment of status.
Spouses may also qualify for derivative dependent status to accompany a spouse who holds a nonimmigrant visa in the U.S.
So, despite the historic decision in Obergefell, little changes from the perspective of the USCIS. The biggest change is that you may choose to live in any state you wish and have your marriage legally recognized, regardless of whom you love.