Immigration Benefits for Same-Sex Couples

Posted on July 15th, 2013, by Livesay & Myers, P.C. in Immigration Law. Comments Off on Immigration Benefits for Same-Sex Couples

U.S. Supreme CourtMany families had a new reason to celebrate this July 4th holiday. On June 26th, the Supreme Court handed down its historic ruling in U.S. v. Windsor, giving many Americans a long-awaited sense of equality. In Windsor, the Court declared key provisions in the Defense of Marriage Act (“DOMA”) unconstitutional. DOMA limited the definition of marriage for purposes of over 1,000 federal laws to a union between a man and a woman, depriving married same-sex couples from a host of federal benefits. Among the widest consequences of the Court’s DOMA ruling is that it opened up immigration benefits for same-sex couples.

Same-sex marriages are legal in some foreign countries and a growing number of U.S. states, yet prior to U.S. v. Windsor these marriages were not recognized under federal law. This not only had financial consequences, but also resulted in the separation of families. Under U.S. immigration law, a marital relationship may be the basis for bringing an immigrant spouse to live in the U.S.– or for preventing the deportation of a spouse already in the country. These immigration laws support family unity and until the Windsor case, same-sex couples did not enjoy the same immigration benefits as heterosexual couples.

The Court’s ruling in U.S. v. Windsor may benefit an estimated 36,000 same-sex binational couples living in the United States– a process which began almost immediately. Just hours after the ruling was handed down, a judge in New York City halted the deportation proceedings of a male Columbian national whose husband is a U.S. citizen. In the wake of Windsor, the judge was free to recognize the couple’s marriage and honor their permanent resident “green card” petition, previously filed. Then, on July 1st, the first green card was approved based on a same-sex marriage— an American man living with his Bulgarian immigrant husband in Fort Lauderdale, Florida.

The Windsor ruling will allow many families to live in the United States together who were previously forced to separate. Examples where same-sex binational couples will now receive the same immigration benefits as heterosexual couples include:

  1. U.S. citizens married to foreign nationals will now be able to secure green cards for their spouses;
  2. U.S. citizens engaged to foreign nationals will now be able to have their partners join them in the U.S. to get married here prior to applying for a green card;
  3. foreign nationals in the U.S. temporarily on work or student visas will be able to have their same-sex foreign national spouses accompany them during their stay in this country; and
  4. U.S. citizens in same-sex marriages will have the same opportunities to prevent the deportation of their spouses as heterosexual couples have.

I have heard many questions over the past few weeks regarding who may benefit under these changes. Here are answers to the three questions I have heard the most:

Q: Will immigration law recognize my same-sex spouse if we live in a state which does not recognize same sex marriages?

A: Yes, so long as the marriage took place in one of the states (or the District of Columbia) which recognize same-sex marriage, you will qualify as married under U.S. immigration law.

Q: Do marriages outside the U.S. qualify?

A: Yes, so long as the marriage was validly entered into under the laws of a foreign country, it can be used for purposes of U.S. immigration benefits.

Q: My partner is undocumented and I am a U.S. citizen, can we apply?

A: Maybe. Generally, someone who is living in the U.S. without lawful status cannot become a lawful resident. One large exception to this rule exists where an immigrant is married to a U.S. citizen. If you are a citizen and your spouse was inspected upon his or her entry into the country (and then subsequently fell into unlawful status by overstaying a visa, for example), they are able to qualify for immigration benefits based on your same-sex marriage. If your spouse entered without inspection, they may qualify for a waiver which would forgive their unlawful entry.

If you are in a same-sex relationship and would like to know if you qualify for immigration benefits, consult with an experienced immigration attorney. For our offices in Northern Virginia, the immigration lawyers at Livesay & Myers represent clients across the United States. Contact us today to schedule a consultation with one of our experienced attorneys—in person, over the telephone, or via webcam on Skype or Google Hangouts.

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Livesay & Myers, P.C. is a law firm with offices in Fairfax, Manassas, Leesburg and Fredericksburg, Virginia. Our attorneys practice family law, criminal defense and immigration law.

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