USCIS Issues FAQ on Supreme Court’s DOMA Ruling
According to the FAQ, Secretary of Homeland Security Janet Napolitano has “directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”
The FAQ provides that U.S. citizens and lawful permanent residents in a same-sex marriage to a foreign national may now file a Form I-130 (Petition for Alien Relative) and any applicable accompanying application. A person’s eligibility to petition for their spouse, and their spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of the marriage.
In addition, if a same-sex couple was married in a U.S. state that recognizes same-sex marriage, but the couple lives in a state that does not recognize same-sex marriage, the U.S. citizen or lawful permanent resident spouse can still file an immigrant visa petition for their foreign national spouse. According to the FAQ, in evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, USCIS may provide further guidance on this question going forward.
The USCIS FAQ is available here.