USCIS Issues New Guidelines on Immigration Benefits for Same-Sex Marriages

USCIS Issues New Guidelines on Immigration Benefits for Same-Sex Marriages

USCIS released new guidelines for legally married same-sex couples in the wake of the US Supreme Court's Windsor decision holding the Defense of Marriage Act (DOMA) unconstitutional. USCIS will review immigrant visa petitions on behalf of a same-sex spouse in the same manner as an opposite-sex spouse. U.S. citizens and Lawful Permanent Residents may immediately file a Form I-130 immigrant visa petition for their same-sex spouse. U.S. citizens engaged to a foreign national of the same-sex may also now file a fiance or fiancee visa petition for him or her. In evaluating the petition, USCIS will generally look to the law of the place where the marriage took place.

USCIS also announced that it will begin performing a system-wide review of denied green card petitions for same-sex couples that were denied solely because of DOMA. USCIS will make a concerted effort to review those petitions filed after February 23, 2011, which is when the Obama administration stopped defending DOMA. Same-sex couples whose I-130 petitions were denied based on DOMA can alert USCIS via email at USCIS-626@uscis.dhs.gov, stating they have a pending petition. Same sex-couples with DOMA denials occurring before that date must notify USCIS by March 31, 2014 via the same email address so that USCIS can reopen those cases for review. Moreover, if another type of petition, other than the I-130, was denied solely based on DOMA, applicants can notify USCIS using the same email address. No fee will be required to request USCIS to reopen the petition using this procedure.

Once the I-130 petition is reopened, USCIS will reconsider the application, as well as reopen any associated applications to the extent they were also denied as a result of the I-130 denial (such as concurrently filed I-485 applications). USCIS will also reconsider applications for work authorization that were denied or revoked based on the denial of the I-485. If USCIS is unable to immediately adjudicated the I-485 application, USCIS will either 1) immediately process any pending or denied employment authorization application or 2) reopen and approved any previously revoked employment authorization application. For applicants who have already submitted their biometric information at an Application Support Center (ASC), USCIS will issue a new Employment Authorization Document.

Immigration benefits based on same-sex marriage other than for immediate relatives are also clarified in the USCIS guidelines. Alien spouses accompanying or following to join their same-sex spouse based on an employment-based petition, non-immigrant visa, or refugee or asylum application will be afforded the same treatment as opposite-sex couples. The same changes in eligibility apply to children of same-sex married couples. Moreover, same-sex married couples will have the same residency requirements for naturalization based on marriage to a US citizen spouse, as well as the same eligibility for waivers of certain inadmissibility grounds.