Marriage Equality Resource Center
Immigration Relief for Same-Sex Couples
The Law Offices of Jacob J. Sapochnick offers extensive information and resources regarding how Windsor v. United States, the recent U.S. Supreme Court decision striking down Section 3 of the Defense of Marriage Act (DOMA), affects immigration law. Contact San Diego immigration attorney Jacob J. Sapochnick for answers to your personal questions about marriage and family-sponsored visas, work authorization, and other benefits arising out of this decision. We are proud to defend the rights of all lesbian, gay, bisexual, and transgender (LGBT) applicants and families.
FAQs: Successfully Obtaining LGBT-Related Immigration Benefits
- What is the significance of the U.S. Supreme Court decision on DOMA?
- Which states allow same-sex marriage?
- Does the ruling force other states to legalize same-sex marriage?
- How does the ruling affect immigration?
- Can we apply for a green card and other immigration relief in any state?
- What if my partner lives in another country?
- When does my fiancé/e or spouse have to undergo consular processing?
- What if my undocumented spouse is barred from returning to the U.S.?
- How long do we have to wait for an immigrant visa to return to the U.S.?
- Are my spouse’s children eligible for immigration relief?
- How does the ruling affect work visas and the ability to obtain employment?
- Is it necessary to obtain legal counsel?
1. What is the significance of the U.S. Supreme Court decision on DOMA?
The U.S. Supreme Court decides issues of federal law. Federal law governs specific issues in every state. Section 3 of DOMA, for instance, was a federal law that denied certain rights and benefits to same-sex couples based on a limited definition of marriage as a union between a man and a woman. For this reason, only some states recognize marriage between LGBT couples: they can be spouses in one state, but only “domestic partners” in others. Many compare this status to “separate but equal.” That is why this watershed decision was the most eagerly-anticipated ruling by many in 2013. It will have far-reaching implications for many legal areas, especially immigration law, by making federal benefits available to same-sex couples in states where their marriage is legal.
2. Which states allow same-sex marriage?
Under the new ruling, 12 states and the District of Columbia now offer federal benefits to same-sex couples. Gay and lesbian couples can legally marry in states including:
- New York
- New Hampshire
- Rhode Island
Proof of a valid marriage in any of these states, or in any country that has legalized same-sex marriage, is treated as a valid marriage for immigration purposes in all states.
3. Does the ruling force other states to legalize same-sex marriage?
No. The Supreme Court issues opinions on issues of federal law, such as immigration and interstate commerce. However, these rulings do not have the force of law in every state. Only Congress has the authority to enact laws. As such, not every state has to legalize same-sex marriage or offer these couples related federal benefits, such as tax breaks, health insurance, Social Security, or disability. But because immigration is only governed by federal, not state law, every state has to extend immigration benefits to same-sex couples that were legally married in a state or country that recognizes marriage equality, even if your state of residence does not.
4. How does the ruling affect immigration?
Immigration is governed by federal law. The Supreme Court confirmed this power when it struck down an Arizona law allowing police to detain suspected “illegal” immigrants and ask for proof of U.S. citizenship. Although Arizona and other states do not recognize marriage equality, they must treat same-sex couples as “married” for immigration purposes if they wed in a state that does. So if two people enter into a valid marriage in Iowa, but reside in Alabama, they cannot be denied immigration benefits, even if the state has not yet legalized same-sex marriage.
5. Can we apply for a green card and other immigration relief in any state?
Yes. Even if you do not live in one of the 12 states listed above, you and your spouse can apply for legal permanent residence (LPR) status or a “green card” based on the marriage. But the same rules for a bona fide marriage apply. It is still the applicant’s burden to show a valid marriage demonstrated by documentary evidence showing genuine intent to share a life together.
6. What if my partner lives in another country?
If your partner lives in a country that recognizes marriage equality, you have the option to marry overseas or in a state where same-sex marriage is legal. In order to bring your intended spouse to the U.S., you may have to file for a fiancé/e visa petitioning for his/her entry into the U.S. to marry. Once the marriage is finalized, the U.S. citizen can then petition for the spouse’s green card based on marriage. If you married overseas, the marriage-based petition may be filed with the U.S. consulate in that country. This is known as “consular processing” outside the U.S.