On June 26, 2013, the United States Supreme Court decided that the Defense of Marriage Act (DOMA) unconstitutional, indicating in a five to four ruling that the act deprived liberty of people protected by the Fifth Amendment. The decision means that US citizenship through same sex marriage is now possible.
Supreme Court Ruling
The Supreme Court Ruling requires the United States government, although not state governments, to treat marriages equally, whether they are same or opposite sex unions. The ruling now means that because same sex marriage couples are given the same rights as opposite sex couples, those in bi-national relationships may petition the government for legal resident status, and eventually U.S. citizenship.
Because the federal government makes immigration decisions, whether the state they live in allows gay marriage is irrelevant. However, just as heterosexual couples should hire an experienced immigration attorney before taking the steps toward citizenship, so should a couple attempting US citizenship through same sex marriage.
Immigration Process the Same
The immigration process for US citizenship through same sex marriage is the same as that for opposite sex couples. According to the US Citizenship and Immigration Services (USCIS), a same-sex couple who wants to apply for a family-based immigrant visa should complete a Petition for Alien Relative (Form I-130). Once the form is received, USCIS determines eligibility and admissibility according to current immigration laws. Unlike before the Supreme Court ruling, USCIS will no longer automatically deny applications from same-sex couples seeking legal residency for one of the spouses.
USCIS, just as they do with opposite sex couples, will conduct an investigation before issuing an immigration card, granting them limited rights within the United States. In order to apply for citizenship, the foreign born spouse must be a permanent resident for at least five years, or you must have been married for three years. Citizenship may also be awarded after honorable service in the US military. The applicant must file an Application for Naturalization and pass the citizenship test before officially becoming a citizen.
The state where the same-sex couple resides has no bearing on whether the couple can apply for US citizenship. However, USCIS does look at the law of the state where the couple was married to determine if the marriage is valid for the purposes of immigration. Therefore, in order to apply for US citizenship through same sex marriage, the couple must be married in a state where same-sex marriage is legal, although they may reside in another state. This is another reason a couple should consult with an immigration attorney who understands issues facing the LGBT community and how immigration laws apply to their particular case.
Judges have begun staying deportation of same-sex couples in compliance with the new regulations. There is no doubt that the decision by the Supreme Court offers LGBT foreign-born spouses the ability to become resident aliens and eventually apply for citizenship, yet it has not streamlined the citizenship process.
Applications submitted by heterosexual couples are denied daily, so it is critical to consult with an immigration attorney who is familiar with same-sex couples, their immigration needs and the law.
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