Immigration Benefits for Same-Sex Couples

Prop8

The Law Office of Matthew I. Hirsch is pleased to present these frequently-asked questions and answers relating to the immigration issues for same-sex partners and their families following the implementation of the Supreme Court’s June 2013 decision rejecting discriminatory provisions of the Defense of Marriage Act. 

  1. How does the Supreme Court’s Windsor v. United States decision impact immigration law?
  2. Does this apply to non-immigrant visas?
  3. Does this apply to marriage-based applications for permanent residence?
  4. Do same-sex couples have to live or intend to live in a state in which same sex marriage is legal in order to qualify for an immigrant or non-immigrant visa?
  5. Is a civil union or domestic partnership treated the same as a marriage for immigration purposes?
  6. Can a U.S. citizen file a Petition for Alien Fiance on behalf of a same-sex partner?
  7. Does this apply to other family-based applications for permanent residence?
  8. Does this apply to employment-based applications for permanent residence? 
  9. If a marriage-based application for permanent residence was previously denied solely because of the federal non-recognition of same-sex marriages, can the cases be re-opened?
  10. Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization? 

How does the Supreme Court’s Windsor v. United States decision impact immigration law? 

On June 13, 2013, after ruling in favor of the plaintiff in Windsor v. United States, the Supreme Court found parts of the federal Defense of Marriage Act (DOMA) unconstitutional. Soon after, agencies of the U.S. government, including the U.S. Citizenship and Immigration Service and the U.S. Department of State implemented the decision by eliminating distinctions between applications for immigration benefits for opposite-sex marriages and same-sex marriages. For a link to same-sex marriage FAQs from the U.S. Citizenship and Immigration Services, click here

Does this apply to non-immigrant visas?

Yes. Non-immigrant visas are temporary visas, such as visitors visas (B-1/B-2), student visas (F-1), visas for corporate transferees (L-1), treaty-investors (E-2) and temporary professional workers (H-1B) and other specific categories. Dependents of non-immigrants i.e. spouses and minor children are eligible for derivative visas i.e. F-2, L-2, E-2, H-4. Now, with the implementation of the Windsor decision, same-sex spouses are eligible for derivative non-immigrant visas. Likewise, some stepchildren acquired through same-sex marriages may also qualify as derivative beneficiaries of non-immigrant visas. For more information about non-immigrant visas, click here

Does this apply to marriage-based applications for permanent residence?

Yes. With the striking down of DOMA, legal marriages between same-sex couples, whether performed in the U.S. or abroad, can be the basis for a marriage-based application for permanent residence. In other words, a U.S. citizen can file an application for marriage-based permanent residence on behalf of his/her non-citizen spouse, so long as the marriage was legal in the state or country where it was celebrated. For more information about marriage-based immigration, click here.

Do same-sex couples have to live or intend to live in a state in which same sex marriage is legal in order to qualify for an immigrant or non-immigrant visa? 

No. If the marriage is valid in the jurisdiction (U.S. state or foreign country) where it took place, it is valid for immigration purposes. 

Is a civil union or domestic partnership treated the same as a marriage for immigration purposes? 

No. At this time, for a relationship to form the basis of an immigration benefit, it must be considered a marriage for all purposes under state or foreign law. 

Can a U.S. citizen file a Petition for Alien Fiance on behalf of a same-sex partner?

Yes, U.S. immigration law permits a U.S. citizen to file a Petition for Alien Fiance on behalf of the foreign fiancé. Once the Petition is approved, the case is passed to the U.S. Embassy or Consulate in the fiance’s home country for the issuance of a K-1 visa. With the K-1visa, an alien fiancé can enter the U.S. in order to marry the U.S. citizen. Following the marriage, the non-citizen spouse may file an application for permanent residence. With the implementation of the Supreme Court’s decision in Windsor, a U.S. citizen can file a Petition for Alien Fiance on behalf of a same-sex fiancé. For more information about fiancé visas, click here.

Does this apply to other family-based applications for permanent residence?

Yes. It is possible for a U.S. citizen or lawful permanent resident to file an application for permanent residence on behalf of their spouse’s child, or stepchild. So long as the step relationship is created before the child’s 18th. birthday then the stepchild is considered the “child” of the U.S. citizen or LPR for immigration purposes. With federal recognition of same-sex marriages for immigration purposes, this means that a U.S. citizen or LPR stepparent can file an application for permanent residence on behalf of a stepchild acquired through a same-sex marriage.

Does this apply to employment-based applications for permanent residence? 

Yes. Under U.S. immigration law, the spouse and minor children of a person sponsored for employment-based permanent residence can accompany the principle beneficiary. Now, with the change in immigration law, the same-sex spouse of a person sponsored for lawful permanent residence, and his/her eligible minor children, can derive the same benefits. For more information about employment-based immigration, click here.

If a marriage-based application for permanent residence was previously denied solely because of the federal non-recognition of same-sex marriages, can the cases be re-opened?

Yes. The government will reopen those petitions or applications that were denied solely because of the prohibition found under Section 3 of the Defense of Marriage Act.  If such a case is known or brought to its attention, USCIS will reconsider its prior decision, and will reopen and adjudicate the Petition for Alien Relative and accompanying Application for Adjustment of Status. No filing fee is required to request reopening of a marriage-based or family-based petition or application pursuant to this procedure.  

Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization?

Yes.  As a general matter, naturalization requires five years of residence in the United States following admission as a lawful permanent resident.  According to applicable laws, permanent residents living in “marital union” with a U.S. citizen can apply for citizenship after three years. For this purpose, same-sex marriages will be treated exactly the same as opposite-sex marriages. For more information about citizenship and naturalization, click here.

An article by Matthew I. Hirsch on the immigration implications of the Supreme Court’s decision overturning the Defense of Marriage Act (DOMA) for same-sex spouses was picked up by the Trenton Times, the Philadelphia Gay News the Rainbow Times of Boston, and the Delaware News Journal. Click here to view the full text.

On May 20, 2014, a federal judge in Pennsylvania joined the United States Supreme Court and over a dozen other states in ruling that the state’s ban on same-sex marriage violated the U.S. Constitution.  Lawyers for the plaintiffs alleged that Pennsylvania’s Defense of Marriage Act violated a fundamental right to marry as well as the Constitution’s equal-protection clause. Since the U.S. Supreme Court’s overturned Section 3 of the Defense of Marriage Act (DOMA) in  U.S. v. Windsor, federal immigration benefits have been available to all legally married same-sex couples. Now, with the rejection of the state’s DOMA law,  roadblocks have been lifted for same-sex couples to marry in Pennsylvania and to pursue marriage-based immigration benefits, such as green cards, fiancé visas, dependent visas and other family-based immigration benefits. Congratulations to the Plaintiffs and their lawyers in the case and to the many couples who can now benefit from marriage equality in Pennsylvania.

The Law Office of Matthew I. Hirsch welcomes immigration inquiries from same-sex spouses, and we encourage you to contact us about your case.