Can I sponsor my same-sex spouse for a green card?
The answer is now an unequivocal “yes.” On June 26, 2013 the U.S. Supreme Court in United States v. Windsor found Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Before the Windsor decision, DOMA prevented the federal government from recognizing the marriages of same-sex couples for immigration purposes. This decision ended the unequal treatment of same-sex and different-sex marriages in the immigration context.
Since the Windsor decision, U.S. Citizenship and Immigration Services (USCIS) is required to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of a different-sex spouse.
What this decision means in practical terms is that United States citizens and lawful permanent residents may file a Form I-130, Petition for Alien Relative, on behalf of a same-sex spouse. U.S. citizens may also petition for a fiancé or fiancee who is a foreign national of the same sex, using Form I-129F. As long as all other immigration requirements are met, an engagement may allow your fiancé to enter the United States for marriage.
If your state doesn’t recognize same-sex marriage, but you get married in another state or foreign country that does, you may still file a petition for your spouse. Immigration law follows the “place-of-celebration rule.” This means that a marriage that’s valid where it happened is valid everywhere. Just as USCIS applies all relevant laws to determine the validity of a different-sex marriage, it also applies all relevant laws to determine the validity of a same-sex marriage. An individual U.S. state’s laws and policies on same-sex marriages do not determine whether USCIS will recognize a marriage as valid.
Couples in civil unions or domestic partnerships are not eligible to take advantage of this change in law, because those relationships are not legal marriages. Nevertheless, many same-sex couples who were previously unable to sponsor a non-native born spouse can now benefit from the U.S. Supreme Court’s decision in an immigration context.
*BRENDA TREML IS A PARTNER AND CO-FOUNDER OF PATHWAYS IMMIGRATION LAW LLP. SHE WORKED AS AN ADJUDICATING OFFICER FOR USCIS FOR OVER 11 YEARS, SPECIALIZING IN A VARIETY OF IMMIGRATION CASES. PATHWAYS IMMIGRATION LAW LLP IS LOCATED AT 115 S. LASALLE, SUITE 2600 IN CHICAGO, IL. WWW.PATHWAYSIMMIGRATIONLAW.COM
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