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Secretary of the Department of Homeland Security Janet Napolitano confirmed that USCIS will accept family-based petitions filed on behalf of same-sex couples by U.S. Citizens or Lawful Permanent Residents
After the Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, the federal agencies were directed to ensure that the federal benefits for same-sex legally married couples get implemented swiftly and smoothly. DHS Secretary Napolitano has directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of same-sex spouses in the same manner as those filed on behalf of an opposite-sex spouse. Similarly, USCIS Director Alejandro Mayorkas has ordered the review of all previously filed I-130 petitions that may have been already denied.
What does it mean for legally married same-sex couples?
- A U.S. Citizen or Lawful Permanent Resident spouse may now file an immigrant visa petition on behalf of his or her same-sex spouse which serves as a basis for adjustment of status (“Green card”) or consular processing of an immigrant visa as such that the I-130 petition will not be automatically denied as a result of the same-sex nature of the marriage. The couple will still have to prove the bona fide evidence of their relationship.
- USCIS advises that even if same-sex couples live in states that do not recognize same-sex marriages, it will look to the law of the state/place where the marriage took place in determining whether it is valid for immigration purposes.
- This decision now allows for sponsorship or derivation of dependent status in the following situations:
- Adjustment of status or Immigrant visa applications
- K-1 Fiancé(e) and K-3 Spouse of a U.S. Citizen petitions and visa applications
- Dependent beneficiaries in the most commonly used classifications: E-2, H-4, L-2, 0-3, P-4, R-2 and others, as well as in employment-based immigration (spouse of a principal beneficiary of an I-140 petition or I-526 (EB-5) investment petition.
- Same-sex spouses will now also serve as qualifying relatives for:
- Inadmissibility waivers (I-212, I-601, I-601A)
- Cancellation of removal proceedings
- Requests of prosecutorial discretion