In June 2013, the United States Supreme Court ruled that Section III of the Defense of Marriage Act (DOMA) was unconstitutional. This effectively required federal agencies to recognize same-sex marriages. Shortly after the ruling, President Obama directed all federal departments and agencies, including U.S. Citizenship and Immigration Services (USCIS), to implement the ruling swiftly and smoothly. On July 3rd, Irish national Cathy Davis became the first person to be based on her marriage to her same-sex American partner. This will enable Davis and her partner to continue raising their three children together in the United States.
The swift application of the repeal of DOMA to immigration laws has opened doors for foreign nationals who have been validly married to U.S. citizens or Lawful Permanent Residents (LPR) in any jurisdiction that recognizes same-sex marriage. Family members who were previously barred from applying for family-based visas are now eligible for green cards. Many of these couples may be unsure of what steps should be taken to apply for a family-based visa. Here are some basic facts about the change in immigration policy.
Any U.S. citizen or LPR who is validly married to a foreign national may now sponsor his or her spouse for a family-based visa, regardless of the gender of each partner. Current immigration laws and procedures still apply, so while the change in policy does not guarantee that a family-based visa will be granted, same-sex partners cannot be denied a visa on the grounds that their marriage is not recognized.
While the repeal of Section III of DOMA granted federal recognition of same-sex marriages, many legally married same-sex couples live in states where same-sex marriages are not recognized. When applying for a green card, the laws of the state of residence of the applicant and his or her sponsor are irrelevant. As long as the couple was validly married in a state which recognizes same-sex marriage, the foreign partner is eligible for a family-based visa.
Couples who are considering marriage may face special challenges. Many couples may have seen no need to marry, based on the impact of DOMA on immigration status. As increased numbers of couples enter into marriages, green card applications may increase. Immigration backlogs are common and couples should be prepared with appropriate documentation to support their application. Couples should also consider seeking help during the application process.
U.S. immigration laws are complex and application procedures can be difficult to navigate. Same-sex couples also face unique legal challenges due to inconsistencies in legal recognition and protection on statewide basis. To fully understand the impact of the repeal of DOMA on immigration laws, couples may want to consider seeking the advice of an attorney. Couples who are currently married will have different needs than couples who are engaged.
A qualified attorney with experience representing LGBT couples as well as knowledge of U.S. immigration policies can provide advice and support as couple navigate the application process.
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