Gay and Lesbian Couples Can Now File for Green Card Petition

In the ruling, the Supreme Court struck down Section 3 of the Defense of Marriage Act (“DOMA”) that denied same-sex married couples federal immigration benefits.

Secretary of State John Kerry issued a statement following the Windsor decision, vowing “to fully implement the requirements and implications of the Court’s decision, we will work with the Department of Justice and other agencies to review all relevant federal statutes as well as the benefits administered by this agency.” The United States v. Windsor decision enabled United States Citizenship and Immigration Services (“USCIS”) to start approving green card petitions for members of same-sex couples living in the U.S. or abroad.

Immigration now recognizes all same-sex marriages that are legal where they took place, and some exceptions might also be made to consider the domicile of the parties. Although many U.S. states and foreign countries are currently reviewing their stance on same sex-marriages, same-sex marriages are currently valid in the U.S. in the following states: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota (as of August 1, 2013), New Hampshire, New York, Rhode Island (as of August 1, 2013), Vermont, and Washington State. They are also legal in the District of Columbia.

These marriages are also valid in the following foreign countries: Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, Netherlands, New Zealand (as of August 19, 2013), Norway, Portugal, South Africa, Spain, Sweden, Uruguay (as of August 1, 2013), as well as certain jurisdictions in Mexico (Mexico City and Quintana Roo).

In response to the Windsor decision, Secretary of Homeland Security Janet Napolitano issued a statement advising USCIS as to how same-sex petitions should be reviewed. She “directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” Therefore, it is important to note that although same-sex couples can now file petitions that will be reviewed just as opposite-sex couple ones, they will also have to meet all other immigration laws and requirements. They will also have to face the same scrutiny and hassles when filing and being interview in connections with these applications.

The Windsor decision applies to other immigration benefits besides permanent residence through marriage. Some of these benefits include:
a. Benefits for derivative beneficiaries of spouses that are being petitioned for employment-based/family-based green cards or nonimmigrant visas (H-4, F-2, etc.) b. Petition for step-children; c. Deportation defenses based on hardship to a U.S. citizen or green card spouse; d. Eligibility for provisional waivers for individuals that entered without inspection; e. Eligibility for I-601 waivers for persons who committed fraud or triggered a 3/10 year bar; and, f. Violence Against Women Act (“VAWA”) relief.

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