Statement from Secretary of Homeland Security Janet Napolitano on July 1, 2013 ( USCIS )
Marriages between people of the same gender
Janet Napolitano, Secretary of Homeland Security, made a statement on July 1, 2013.
"Following the Supreme Court's decision last week that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Barack Obama directed federal agencies to ensure that the decision and its implications for federal benefits for same-sex legally married couples are implemented quickly and smoothly. To that end, I've authorized the United States Citizenship and Immigration Services (USCIS) to evaluate immigration visa petitions filed on behalf of a same-sex spouse in the same way that petitions filed on behalf of an opposite-sex spouse are reviewed."
Petitioning for my Spouse (CR1)
Q1: I am a United States citizen or a lawful permanent resident married to a foreigner of the same gender. Is it now possible for me to sponsor my spouse for an immigrant visa based on their family?
A1: Yes, the petition can be filed. A Form I-130, Alien Relative Petition, can be filed (and any applicable accompanying application). Your eligibility to petition for your spouse, as well as 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 your petition will not be denied because of your marriage's same-sex nature.
Q2. I am a United States citizen who is engaged to marry a foreigner of the same gender. Is it possible for me to file a fiancé or fiancée petition for him or her?
A2. Of course. A Form I-129F, Petition for Alien Fiancé, may be filed (e). A same-sex engagement may allow your fiancé to enter the US for marriage if all other immigration conditions are met.
Q3: My partner and I were married in a state or country that recognizes same-sex marriage, but we now live in one that does not. Is it possible for me to petition for my spouse's immigrant visa?
A3: Of course. In general, whether a marriage is legally valid for immigration reasons is determined by the law of the place where it was celebrated. We shall use all relevant laws to assess the legality of a same-sex marriage, just as we did to determine the validity of an opposite-sex marriage. The rules and practices on same-sex marriages in the domicile state have no bearing on whether USCIS will recognize a marriage as valid.
Eligibility Changes as a Result of Same-Sex Marriage
Q6. What are immigration benefits other than those for immediate family members, immigrants with a preference for family, and fiancés or fiancées? Will same-sex marriages qualify as marriages for purposes of immigration benefits if the benefit is conditional on the existence of a "marriage" or one's status as a "spouse"?
A6. Yes, The definitions of the terms "marriage" and "spouse" in US immigration regulations determine eligibility for a variety of benefits. A noncitizen seeking to qualify as a spouse accompanying or following to join a family-sponsored immigrant, an employment-based immigrant, certain nonimmigrant subcategories, or a noncitizen who has been given refugee status or asylum are just a few examples. A same-sex marriage will be treated the same as an opposite-sex marriage in all of these instances.
Q7. Could a same-sex marriage affect my eligibility for 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 a lawful permanent resident?
A7. In some cases, whether an individual qualifies as a "child," a "son or daughter," a "parent," or a "brother or sister" of a U.S. citizen or a lawful permanent resident is determined by the individual's own or his or her parents' marriage. Same-sex marriages will be treated the same as opposite-sex marriages in certain situations.
Residency Requirements:
Q8. Can same-sex weddings, like opposite-sex marriages, shorten the time it takes to become a naturalized citizen?
A8. Yes. Naturalization generally requires five years of continuous residence in the United States after admission as a lawful permanent resident. However, according to immigration regulations, naturalization is possible after a three-year residency requirement if you have lived in "marital union" with a U.S. citizen "spouse" during that time and your spouse has been a U.S. citizen. Same-sex marriages will be treated the same as opposite-sex marriages for this purpose.
Waivers of Inadmissibility
Q9. I'm aware that under certain circumstances, immigration regulations provide for discretionary waivers of certain inadmissibility grounds. The person must be the "spouse" or other family member of a U.S. citizen or lawful permanent resident in order to qualify for some of the waivers. Will same-sex marriages count in circumstances where the required familial tie depends on whether the individual or the individual's parents fulfill the definition of "spouse"?
A9. You are correct. Same-sex weddings shall be recognized the same as opposite-sex marriages whenever immigration regulations require the existence of a "marriage" or status as a "spouse."
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