Looking back on 2013 as a Miami immigration lawyer, I must remark on the fact that it truly was a momentous year for LGBTQ rights. Following the decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples were implemented swiftly and smoothly. What this meant for same sex couples was that same-sex couples could now receive the same immigrant benefits as heterosexual couples. Below are some frequently asked questions.
Petitioning for my Spouse
I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?
Yes, you can file the petition. You and/or your Miami immigration lawyer may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be denied as a result of the same-sex nature of your marriage. If you have any questions in regard to this, I would highly recommend that you speak with a Miami immigration lawyer.
I am a U.S. citizen who is engaged to be married to a foreign national of the same sex. Can I file a fiancé or fiancée petition for him or her?
Yes. As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for marriage. Again, you may want to speak with a Miami immigration lawyer in regard to this.
Previously Submitted Applications and Petitions:
My Form I-130, or other petition or application, was previously denied solely because of DOMA. What should I do?
First, I would suggest that you speak with a Miami immigration lawyer to discuss your options. USCIS will reopen those petitions or applications that were denied solely because of DOMA section 3. If such a case is known to USCIS or brought to their attention, USCIS will reconsider its prior decision, as well as reopen associated applications to the extent they were also denied as a result of the denial of the Form I-130.
Changes in Eligibility Based on Same-Sex Marriage
What about immigration benefits other than for immediate relatives, family-preference immigrants, and fiancés or fiancées? In cases where the immigration laws condition the benefit on the existence of a “marriage” or on one’s status as a “spouse,” will same-sex marriages qualify as marriages for purposes of these benefits?
Yes. Under the U.S. immigration laws, eligibility for a wide range of benefits depends on the meanings of the terms “marriage” or “spouse.” Examples include (but are not limited to) an alien who seeks to qualify as a spouse accompanying or following to join a family-sponsored immigrant, an employment-based immigrant, certain subcategories of nonimmigrants, or an alien who has been granted refugee status or asylum. In all of these cases, a same-sex marriage will be treated exactly the same as an opposite-sex marriage. Again, if you have any questions in regard to this, you should speak with a Miami immigration attorney.
If I am seeking admission under a program that requires me to be a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful permanent resident, could a same-sex marriage affect my eligibility?
There are some situations in which either the individual’s own marriage, or that of his or her parents, can affect whether the individual will qualify as a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful permanent resident. In these cases, same-sex marriages will be treated exactly the same as opposite-sex marriages.
Residency Requirements
Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization?
As a general matter, naturalization requires five years of residence in the United States following admission as a lawful permanent resident. But, according to the immigration laws, naturalization is available after a required residence period of three years, if during that three year period you have been living in “marital union” with a U.S. citizen “spouse” and your spouse has been a United States citizen. For this purpose, same-sex marriages will be treated exactly the same as opposite-sex marriages. Should you have any questions in regard to this, you may want to speak with a Miami immigration lawyer.
Inadmissibility Waivers
I know that the immigration laws allow discretionary waivers of certain inadmissibility grounds under certain circumstances. For some of those waivers, the person has to be the “spouse” or other family member of a U.S. citizen or of a lawful permanent resident. In cases where the required family relationship depends on whether the individual or the individual’s parents meet the definition of “spouse,” will same-sex marriages count for that purpose?
Yes. Whenever the immigration laws condition eligibility for a waiver on the existence of a “marriage” or status as a “spouse,” same-sex marriages will be treated exactly the same as opposite-sex marriages.
If you would like more information on filing a marriage or fiance petition for your same sex spouse, please contact Miami immigration lawyer Michael G. Murray, Esq. at (305) 895-2500 or visit our website at www.mmurraylaw.com.