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U.S. Immigration Benefits for Same-Sex Couples: How to Apply?
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Following the landmark U.S. Supreme Court ruling that the federal government must recognize same-sex marriages that are conducted in places where it is legal, USCIS has announced that it has begun accepting and reviewing 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. Accordingly, a U.S. Citizen or a lawful permanent resident (LPR), who is married to or engaged to be married to a foreign national of the same sex, may apply right away for immigration benefits for which they believe they are eligible.

USCIS has also issued additional FAQ’s on the subject. Here we focus on some of the key aspects of the announcements made by USCIS on the subject:

Immigrant Visas for Spouse in a Same-Sex Marriage

A U.S. Citizen or LPR who is in a same-sex marriage to a foreign national can now sponsor his or her spouse for a family-based immigrant visa by filing a Form I-130 and any applicable accompanying application(s). The U.S. Citizen or LPR’s eligibility to petition for his or her foreign national spouse of the same sex and the foreign national spouse’s admissibility as an immigrant will be determined according to applicable immigration law and will not be denied as a result of the same-sex nature of the marriage.

Note: In order to be eligible for immigration benefits, the U.S. Citizen or the LPR must have married the foreign national spouse of the same sex in a U.S. state or a foreign country that recognizes same-sex marriage. As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes, and USCIS will apply all relevant laws to determine the validity of a same-sex marriage, just like an opposite-sex marriage.

Furthermore, same-sex spouses who are accompanying or following-to-join a family-sponsored immigrant or employment-based immigrant will also be eligible to receive the same benefits as opposite-sex spouses. 


K-1 Fiancé(e) Visa for Same-Sex Couples

A U.S. Citizen who is engaged to be married to a foreign national of the same sex can also file a fiancé(e) petition (K-1 visa petition) on behalf of the foreign national. The U.S. Citizen may file a Form I-129F, and as long as all other immigration requirements are met. A same-sex engagement may allow the foreign national fiancé(e) to enter the United States to marry the U.S. Citizen in the U.S.


Dependent Nonimmigrant Classifications (H-4, L-2, TD, etc.) for Same-Sex Spouses

Immigration benefits for same-sex couples will extend to all benefits that depend on the meaning of the term “marriage” or “spouse.”  This includes dependent nonimmigrant classifications like H-4, L-2, F-2, TD, and O-3.  Based on announcements from the Department of State, spouses of nonimmigrant visa holders who are eligible for nonimmigrant dependent visa classification based on marriage, should be able to seek the nonimmigrant visa at the U.S. Consulates around the world.  However, it is very important to note that the marriage must have taken place in a U.S. state or foreign country where it was legal. 


Previously Denied Petitions and Applications

I-130 Denials

In cases where the Form I-130, or other petition or application, was previously denied solely because of DOMA, USCIS will reopen those petitions or applications. USCIS will reconsider its prior decision, as well as reopen associated applications to the extent they were also denied as a result of the denial of the Form I-130, such as concurrently filed Forms I-485.

In cases where work authorization was denied or revoked based upon the denial of the Form I-485, the denial or revocation will be concurrently reconsidered, and a new Employment Authorization Document issued, to the extent necessary. 

USCIS has further announced that if a decision cannot be rendered immediately on a reopened adjustment of status application, it will either

  1. immediately process any pending or denied application for employment authorization or
  2. reopen and approve any previously revoked application for employment authorization. 

Where the applicant has already submitted his or her biometric information at an Application Support Center (ASC), a new Employment Authorization Document (EAD) will be produced and delivered without any further action by the applicant. In cases where USCIS has not yet obtained the required biometric information, the applicant will be scheduled for an ASC appointment.

USCIS has announced that it will make a concerted effort to identify I-130 denials that occurred on the basis of DOMA after February 23, 2011. USCIS will also make a concerted effort to notify the petitioner at his or her last known address, of the reopening and request updated information in support of the petition.

Note: For I-130 denials that occurred prior to February 23, 2011, applicants must notify USCIS by March 31, 2014 for it to act on its own to reopen the I-130 petition. The applicant may notify USCIS by sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov noting that he or she believes that the petition was denied on the basis of DOMA section3.

Applicants may also use the same email address to contact USCIS about petitions denied after February 23, 2011 if information like address has changed. 

Once the I-130 petition is reopened, it will be considered anew—without regard to DOMA section 3—based upon the information previously submitted and any new information provided.  


Denial of Other Petitions or Applications

If any other petition or application, other than an I-130 petition or associated application, was denied based solely upon DOMA section 3, the petitioner or applicant may notify USCIS by March 31, 2014, by sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov. In such cases, USCIS will consider whether reopening of that petition or application is appropriate under the law and the circumstances presented.

No fee will be required to request USCIS to consider reopening a petition or application pursuant to this procedure. 


Waivers

Same-sex marriages will also be treated exactly the same as opposite-sex marriages for the purpose of determining eligibility for any waivers that are based on the existence of a valid marriage or status as a spouse.


Residency Requirements for Naturalization

Same-sex marriages will be treated exactly the same as opposite-sex marriages for the purpose of reducing the residence period required for naturalization. Accordingly, naturalization is available to a foreign national Green Card holder in a same-sex marriage after a required residence period of three years, if during that three year period he or she has been living in marital union with a U.S. Citizen spouse and the spouse has been a United States Citizen for that period of 3 years.


Conclusion

Following President Obama’s direction to federal departments to implement the landmark U.S. Supreme Court ruling on validity of same-sex marriages for the purpose of federal benefits, USCIS has announced that it has begun accepting and reviewing 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 decision

USCIS has also announced that it will continue to update information regarding same-sex marriage and immigration benefits. We at VisaPro continue to monitor the developments in this regard and will keep our readers updated. If you are in a same-sex marriage and wish to sponsor your foreign national spouse for any immigration benefit or if want to learn more about the immigration options that are now available to same-sex couples and their family members Contact VisaPro immediately. We will be happy to talk to you.



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