On July 1st 2013 it became official policy for USCIS to recognize same-sex marriages as being treated equal to heterosexual marriages in terms of immigration.
Because immigration is a federal matter, federal recognition of same-sex marriages is the deciding factor when it comes to this issue. For immigration purposes and being legal in the United States, an individual state’s same-sex marriage laws or policies has zero bearing.
One of the first recent steps in this direction came with the Immigration Act of 1990, which among other things prohibited the exclusion of immigrants based on the fact that they were homosexual. Before 1990 it was on the books that you could be denied citizenship on the grounds of being homosexual.
The federal government first defined marriage as an act which only takes place between a man and a woman in 1996 in the Defense of Marriage Act (DOMA). A specific portion of the DOMA, Section 3, also declared the federal government would not recognize same-sex marriages for federal purposes- i.e. taxes, immigration, social security, etc. Prior to this there was no official federal definition of marriage.
However a Supreme Court ruling in 2013 declared Section 3 of DOMA to be unconstitutional. President Obama preceded this ruling in 2011 saying that his administration believed the law to be just that, and would not defend any court actions against it, although the Act still remained in effect until at least Section 3 was recently declared moot.
A week after the Supreme Court’s decision on DOMA the director of Homeland Security at the time, Janet Napolitano, issued a directive to USCIS ordering federal recognition of same-sex marriage for the purposes of immigration. This means you can apply for same-sex marriage immigration visas and petitions as would anyone else involved in an immigration case based on a heterosexual marriage. This includes the following circumstances where you are a U.S. citizen or lawful permanent resident involved in a same-sex relationship and:
- You are engaged to a foreign national and would like to petition them to come to the US
- You are already married to a foreign national and would like to petition for them to come live with you in the US
- You have previously had a petition denied based on the fact that you were in a same-sex marriage or relationship and can now bring this to the attention of USCIS and have your case reconsidered
- You would like your spouse to be considered for marriage-based work permission
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