DOMA and Same-Sex Marriages Q&A

by Elizabeth Brettschneider


Last week my colleague Matt Bray described the history of the Defense of Marriage Act (DOMA) and background to the Windsor decision overturning DOMA. As a followup to that post and also inspired by the helpful Q&A on the US Citizenship & Immigration Services (USCIS) website, this post aims to provide some practical answers to commonly asked immigration-related questions in the aftermath of the decision.

Given the previous record of treatment by the US government and USCIS, some same-sex couples are understandably cautious about moving forward. That said, the US government has made it clear that same-sex married couples can (and should) expect equal treatment under the law. Practically, though, what does that mean?

My partner and I have entered into a civil union. Is that the same as a marriage for immigration purposes?
No. Only legal marriages are considered for immigration purposes. For the marriage to be legal, the marriage must have taken place in a jurisdiction (i.e., a US state or foreign country) where same-sex marriage is legal.

Where is same-sex marriage legal within the US?
This is a constantly evolving answer. A good resource on the up-to-date list of states that allow same-sex marriage can be found at hrc.org and lambdalegal.org.

What if the same-sex marriage was valid in the state where it was performed but we don’t live in that state anymore? And the state we live in doesn’t allow for same-sex marriage. Can we still apply for immigration benefits based on our marriage?
Same-sex couples do not have to live in a state where marriage is legal or the state where the marriage was performed in order to qualify for an immigration benefit. As long as the place where the marriage was performed legally allows and recognizes same-sex marriage, that is what is important.  

I want to get married to my same-sex partner; however, we can’t marry legally in my partner’s home country.  What can we do?
If there is an intention to marry in the US within ninety days of entry to the US , the US citizen can apply for a fiancé visa on behalf of his/her foreign national partner.  

I am a US Citizen and want to petition for a Green Card for my same-sex spouse, who has a child. Can I also sponsor the child?
Yes. As long as the legal marriage took place before the child turned eighteen and the US-citizen sponsor is a legally-recognized stepparent of that child, an immigrant petition can be filed on the child’s behalf.  

I am not a US citizen nor Lawful Permanent Resident of the US, but I do have a H-1B temporary nonimmigrant visa. Can my same-sex partner get the dependent H-4 visa at the US Embassy/Consulate abroad and join me in the US?  
Yes. Dependent visas for all nonimmigrant visa categories are now available to same-sex spouses. The applicant will just have to bring proof of the legal marriage and proof of his/her partner’s H-1B classification or status in addition to other standard documentation when applying for the H-4 visa.  

I am applying for an L-1 visa. Can my same-sex spouse apply for employment authorization to work in the US?
Yes. Same-sex spouses are eligible for all related benefits, including applying for employment authorization once they enter the US in L-2 status.

I previously submitted an I-130 based on my marriage to my same-sex spouse. It was before DOMA was declared unconstitutional so USCIS denied my case. Do I have to re-file all over again?
Not necessarily. USCIS has said that it will reopen I-130 petitions that were denied solely on the basis of DOMA Section 3; however, these cases need to be brought to the attention of USCIS. USCIS said that they are making an effort to identify such denials from February 23, 2011 onward (February 23, 2011 is the date President Obama announced he would not defend Section 3 of DOMA). USCIS has asked that those whose applications fall in this category notify them. They have set up an email address at USCIS-626@uscis.dhs.gov for such notifications. For denials of I-130s that occurred prior to February 23, 2011, the applicants MUST notify USCIS by March 31, 2014!  If applicants miss this deadline, it is very likely that they will be required to re-submit a new I-130 to USCIS. Don’t miss this deadline.  

I’m applying for asylum. Can my same-sex spouse be a derivative beneficiary?
Yes, just as with opposite-sex spouses, same-sex spouses get derivative benefits of asylees.

I’ve been married over three years to my US-citizen same-sex spouse. I have a Green Card based on employment, which I’ve held for the last three years. When am I eligible to apply for US citizenship?
The same rules apply to same-sex couples as to opposite-sex couples. Green Card holders are eligible to apply for citizenship after they have had a Green Card for three years as long as they have been married and living with their US-citizen spouse for those three years. Once both the marriage and the Green Card status hit three years, they can apply, as long as all other eligibilities for citizenship are met. No matter if the foreign national obtained the Green Card based on employment, marriage, or any other basis, once Green Card holders have held lawful permanent resident status for three years, whether married to a US citizen (same or opposite-sex) and living with their spouse for three years, they can apply for US citizenship. Those not married to US citizens must wait five years to apply for US citizenship.

I was told by the US Embassy/Consulate that I need a waiver for a past immigration violation. Can my same-sex spouse qualify as my “qualifying relative” for that?
Yes, same-sex spouses can now be considered as qualifying relatives for the purpose of waiver eligibility.  

I read recently in the news about Senators Ted Cruz and Mike Lee trying to introduce a DOMA-like law. Could DOMA be reinstated? So if I apply for a Green Card or some other immigration benefit based on my same-sex marriage, could Congress revoke immigration benefits for same-sex partners?
Although we have no way of knowing how Congress would word any such possible Act, if a DOMA-like law were passed in the future, unless it is written to take retroactive effect, anyone who has already received a permanent benefit such as a Green Card or early citizenship (i.e., citizenship obtained after three years based on marriage to US citizen, as discussed above) would likely keep it; however, those who have any ongoing dependent status (such as H-4, O-3, or L-2) may lose that status as of the effective date of the Act. Given the country's current political and cultural climate, as far as we can tell it appears unlikely that such an Act would be passed, at least any time in the near future. From our standpoint then this should not be a concern for those applying for immigration benefits based on a same-sex marriage.

Equal Under the Law
It’s now been seven months since DOMA was overturned. In that time, numerous same-sex couples have taken advantage of the new opportunities afforded them. There are surely hurdles as US Embassies and Consulates attempt to provide services to same-sex couples in countries that do not accept gay rights. Foreign nationals in those countries may have difficultly collecting evidence to prove a bona fide relationship in a country where they may have been forced to hide that relationship, and moreover may be fearful about applying for immigration benefits based on their same-sex relationship to a foreign government when their own government does not accept them. Despite the possible difficulties that are sure to continue, both the Department of Homeland Security and the State Department have issued guidance that clearly shows the intent is that all who apply will be treated equally.