U.S. Citizenship and Immigration Services (USCIS) has started to accept petitions for alien relatives and applications for lawful permanent residence (a “green card”) from same-sex spouses of American citizens.
This is in response to the U.S. Supreme Court’s recent decision in United States v. Windsor, which found a key provision of the Defense of Marriage Act (“DOMA”) unconstitutional. (DOMA denied federal benefits to same-sex couples.) Previously, even if a gay or lesbian couple married in one of the states that allow same-sex marriage, they could not benefit from federal laws which regulate immigration and define an “Immediate Relative” of a U.S. citizen. Now, Department of Homeland Security permits same-sex married couples to file petitions for immigrant visas. Those applications will no longer be automatically denied because the spouses are of the same sex.
For same-sex married couples where both spouses are in the U.S., the visa petition can be filed at the same time as an application for adjustment of status, thus permitting the alien spouse to receive permanent residency. For same-sex married couples where one or both of the spouses resides abroad, the alien spouse’s visa petition and application to adjust status will be processed at the U.S. Embassy or Consulate abroad.
As with all other family-based petitions, all grounds of inadmissibility and removability must be reviewed and considered carefully before filing any application.