On Monday July 1, 2013, U.S. Department of Homeland Security Secretary Janet Napolitano released a statement announcing that all married couples would be treated the same for purposes of immigration. This was a direct implementation of an earlier Supreme Court decision which declared Section III of the Defense of Marriage Act (DOMA) unconstitutional. Previously, same-sex married couples were not able to apply for visas based on marital status.
Two days later Irish national Cathy Davis, who had been living in the United States with her wife and their three children, was granted a spousal visa. Davis became the first member of a same-sex couple to be issued a green card based on her marital status. The change in immigration policy will enable thousands of immigrants to qualify for spousal visas through same sex marriage. This includes both K-1 fiancé visas and K-3 marriage visas.
How do you receive a spousal visa through same sex marriage?
The first thing to note regarding the change in immigration policy is that no immigration rules have changed. The federal government will now recognize valid same-sex marriages in the same way it recognizes valid opposite-sex marriages. Any foreign national who is married to a US citizen or Lawful Permanent Resident (LPR) may be sponsored for a green card by his or her spouse. The marriage must be valid in the jurisdiction where it was performed.
Couples who were married in countries or US States where same-sex marriage is recognized will be considered to be validly married. Couples who were married in a state that recognizes same-sex marriage, but now reside in a state that does not recognize same-sex marriage, are still considered to be validly married.
Some US states do not recognize same-sex marriage, but rather, allow civil unions instead. Based on Secretary Napolitano's statement, it is as yet unclear whether the federal government will recognize a civil union as a marriage for immigration purposes. Couples joined in a civil union who hope to obtain a spousal visa through same sex marriage provisions should seek the advice of a qualified immigration attorney. Many immigration lawyers understand the complexities associated with LGBT immigration.
Couples who are engaged, or who hope to marry in the future, should also seek the advice of counsel. Applying for a fiancé or spousal visa is a complex process, and requires extensive documentation and several rounds of interviews. With the repeal of DOMA, couples are suddenly faced with new opportunities. While it is an exciting time, couples should understand all of their options.
Same-sex couples can rejoice that they are now entitled to equal treatment by federal immigration agencies. However, immigrating to the United States is a difficult process. Married and unmarried couples need to know the correct procedures to obtain a spousal or fiancé visa. Immigration attorneys are experienced at helping families navigate a complex, and often confusing system.
Consulting with a same-sex immigration attorney is a good first step when starting the immigration process.
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