US immigration was affected by a landmark Supreme Court decision to overturn the Defense of Marriage Act (DOMA), now recognizing same-sex marriages under federal law. By extension, same-sex marriages are now entitled to receive the same US immigration benefits granted to heterosexual married couples. There is no waiting period for these changes to take place, and same-sex couples can take immediate steps to seek immigration benefits. United States Citizenship and Immigration Services (USCIS) will use the same standards to determine whether or not a marriage is genuine, regardless of whether it is a same-sex or heterosexual marriage.
New US Immigration Benefits for Same-Sex Couples
Petition a Spouse for a Green Card
US citizens and lawful permanent residents in a same-sex marriage to a foreign national can now file a petition to sponsor their spouse on a family-based immigrant visa. Eligibility for a green card is based on the validity of the marriage, and cannot be denied on the basis of its same-sex nature. Form I-130 can be filed, along with any accompanying application, on behalf of a same-sex spouse.
Include a Spouse as a Derivative on a Green Card Application
If you are applying for a US green card (for example, through an employment-based US immigration visa), your same-sex spouse can now be included as a derivative. If approved, that means you can legally bring your spouse to the United States with you. They cannot be denied entry on the basis of gender in a marriage.
Claim a Same-Sex Spouse as a Qualifying Relative
If your same-sex spouse is deemed inadmissible to the United States, you may be able to claim them as a qualifying relative on a waiver. Your success will depend upon several factors, including the reason that they were denied entry. You may need to prove that they will experience ‘extreme hardship’ should they be turned away. In the past, your claim could be denied on the basis of a same-sex marriage, but that is no longer the case. You may also be able to claim a spouse as a qualifying relative to prevent them from being removed under US immigration law.
If you and your spouse have had US immigration visa petitions denied in the past on the basis of your same-sex marriage, you may be able to re-file your paperwork. The same applies for a spouse who has been deported or removed from the United States. An US immigration lawyer may be able to help you answer any questions you have about your particular situation.