US Immigration Laws Affecting Same-Sex or Gay Marriage
Francisco A. Laguna & Annapurna Nandyal
Today we continue with our series on US immigration laws by discussing the United States’ immigration policy on same-sex marriage (also known as gay marriage).
Currently, same-sex marriages are being hotly debated in the US, and the discussion is likely to intensify as the 2016 presidential elections draw closer. Until recently, the US denied recognition to same-sex couples seeking to immigrate to the United States and did not confer the same rights and privileges afforded opposite-sex couples. This was due to the federal Defense of Marriage Act (DOMA) which defined marriage as the union between one man and one woman, thereby preventing same-sex couples from seeking immigration benefits based on marriage.
Though same-sex marriages are legal or recognized in most developed countries, it was only in 2013 that gay marriage was recognized in the US as a result of the US Supreme Court decision in United States v. Windsor, which ended the differential treatment afforded same-sex spouses in matters of immigration and declared DOMA unconstitutional.
Today, same-sex marriage is recognized by the federal government and has been legalized in 36 U.S. States and in the District of Columbia. This new federal recognition of same-sex marriage allows same-sex spouses to apply for immigration benefits based on marriage. The benefits include:
- If a US citizen or lawful permanent resident (LPR) has a same-sex marriage with a foreign national, then he/she can sponsor his/her spouse for a family-based immigrant visa; and
- If a US citizen is engaged to be married to a foreign national of same sex, s/he can file a fiancé/fiancée petition.
Besides spouse and fiancé/fiancée visas, same sex couples can also sponsor immediate relatives and are eligible for family-preference immigrant visas.
The US Citizenship and Immigration Services (USCIS) will recognize same-sex marriages performed abroad provided one spouse is a US citizen or LPR, and the marriage was performed in a jurisdiction where such marriages are permitted.
Same-sex couples are now included USCIS’ broad definition of a spouse, and domestic violence victims in same-sex marriages can claim immigration benefits even after leaving their abusers.
For residency requirements, same-sex couples will be treated the same opposite-sex spouses. The same-sex spouse of a visa applicant coming to US for any purpose – including work, study, international exchange programs or as a legal immigrant – will be granted derivative visas. Step-children acquired through same-sex marriage can also qualify for immigrant visas.
One important criterion to be met by same-sex couples is that their relationship must be based on marriage: civil union and domestic partnerships do not qualify couples for immigration benefits.
Under federal guidelines, the USCIS will determine the eligibility of same-sex couples for immigration benefits based on whether the place of marriage legally allows gay marriage. This includes instances where a couple marries in a state within the US that recognizes same-sex marriages but the US citizen or LPR is domiciled in a state that does not. For example, assume a couple lives in Texas, which does not recognize same-sex marriages. They get married in New Mexico, which recognizes same-sex marriages and later return to their home state Texas. USCIS will honor such marriage, and the US spouse is eligible to sponsor his/her spouse for adjustment of status.
US citizens may sponsor their same-sex fiancé/fiancée for a K-1 visa regardless of the state of residence of the petitioning US citizen or the country of residence of the foreign born fiancé. For example, assume a US citizen lives in a state that does not recognize gay marriage. She is engaged to a foreign citizen who lives in a country that also does not recognize gay marriage. The US citizen can still apply for a K-1 visa, and the couple must get married within 90 days in a US state where gay marriages are permitted.
Questions may arise when same-sex couples live in a state that does not recognize gay marriage. The federal government will recognize the marriage, and same-sex couples may apply for federal benefits such as immigration, tax benefits and military spouse benefits. However, the state will treat the same-sex couple as two single people for tax purposes, and state employment and other benefits for couples may not apply.
TransLegal is available to help corporations and individuals navigate the intricacies of the US immigration system. Call us with your questions.