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Same-Sex Marriage & Immigration

A person who is married to a U.S. citizen of the same-sex can qualify for immigration as an immediate relative of a U.S. citizen, regardless of the place of marriage or current place of residence. Under federal guidelines, USCIS will honor the ‘place of celebration’ when determining eligibility for immigration benefits for same-sex couples; meaning that so long as the marriage was solemnized in a place where such a marriage is legal, USCIS will honor such marriages as valid.

As the landscape of states that do allow same-sex couples to wed is constantly changing, some couples may have many complicated legal situations. However, thanks to the recent Supreme Court ruling striking down section 3 of DOMA; same-sex binational couples have numerous avenues for immigration relief:

  • If a couple thatlives in a state that does not allow same-sex marriage, such as Texas, marries in a state that does allow same-sex couples to wed, such as New Mexico, and the couple returns to their home state of Texas; the federal government, and thus the USCIS, will recognize the marriage for federal purposes, regardless that the state of Texas refuses to recognize the couple as legally married. Thus, the US citizen or permanent resident spouse is still eligible to sponsor his or her spouse for adjustment of status.
  • US citizens may sponsor their same-sex fiancé to come to the US with a K1 visa; regardless of the state of residence of the petitioning US citizen or the country of residence of the foreign born fiancé. For example, a US citizen is engaged to his or her fiancé who resides abroad. The US citizen resides in the state of Arizona, where same-sex marriage is not permitted, and the intending immigrant fiancé resides in country where same-sex marriage is also not recognized, such as China, Russia, Japan, or Saudi Arabia. However, the US citizen may still petition his or her fiancé to come to the US to get married. While the K1 visa does not force that a marriage takes place, the couple will need to marry in a state that allows same-sex marriage within 90 days of the intending immigrant’s arrival in the US, if they wish to comply with the visa’s terms and adjust the foreign born fiancé’s status to permanent resident. Please see alien fiancé/fiancée K1 Visas for more information.
  • Similarly, US citizens may sponsor their foreign born spouses for a K3 visa, regardless of the state of residence of the US citizen or the country of residence of the foreign born spouse; so long as the marriage was performed in a jurisdiction that legally allows same-sex marriage. For example, John & Steve met while visiting Paris. John lives in New York & Steve lives in London. They quickly fell in love and decided to marry in Paris before their trip ended. Upon John’s return to the US, he files for a K3 visa on behalf of his new husband, Steve; so that they may build a life together in the USA. The K3 visa will allow Steve to enter the US and then apply to adjust status to permanent resident. Please see alien spouse K3 Visas for more information.
  • USCIS will recognize same-sex marriages performed abroad for purposes of immigration benefits. Many same-sex binational couples have been in exile from the US due to the discriminatory ‘DOMA’. DOMA forced many couples to choose between country and family; and thus many couples built lives overseas so that they could remain together. However, some couples are now contemplating returning to the US now that the opportunity has presented itself. So long as one spouse is a US Citizen and the marriage was performed in a jurisdiction where such marriages are permitted**, the couple will enjoy the full immigration privileges offered to married couples by the federal government.
  • Recently, same-sex couples had a short window of time to marry in the state of Utah due to on-going litigation in the case Kitchen v. Herbert, which challenges the state’s constitutional ban on same-sex marriage. On December 20th, 2013; District Judge Robert Shelby ruled the state’s ban on same-sex marriage unconstitutional and immediately allowed same-sex couples to marry in the state. During the brief window of time during which same-sex couples could marry, over 1000 marriages were recorded between individuals of the same-sex. However, the state of Utah appealed the decision to not ‘stay’ the ruling to the US Supreme Court, which stayed the decision after two weeks of legal same-sex marriage.In other words, the District Judge enforced his ruling immediately, but the state of Utah wanted to see the case appealed before enforcing his ruling. Once the US Supreme Court granted a stay at the request of the state of Utah, Utah was no longer required to recognize those marriages as valid. This has left many couples in a legal gray-zone; however, the Obama Administration issued guidelines reassuring all same-sex married couples in Utah that their marriages would continue to be recognized by the federal government, regardless of the outcome of the case. Thus, even in states that at one point issued same-sex marriage licenses, but have subsequently revoked that right; the marriage licenses remain valid in the eyes of the federal government. Thus, couples in this kind of situation continue to remain eligible for immigration benefits pending further litigation.

Currently, same-sex couples seeking to wed in the US may do so in the following locations:

California, Connecticut, Delaware, DC, Hawaii, Illinois*, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, & Washington.

*Goes into effect on June 1, 2014

**Same-sex marriages are legal in the following nations:

Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, Mexico, Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, UK, & Uruguay.

For more information on sponsoring spouses of U.S. citizens or U.S. Permanent Residents, please click on the following links: