Following the landmark U.S. Supreme Court ruling regarding DOMA, specifically stating 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 involving same-sex spouse in the same manner as those filed which involve opposite-sex spouses.
It is important to remember that while many states now recognize same-sex marriage and have legalized it, the parts of DOMA that still stand make it explicitly clear that individual states do not have to recognize same-sex marriage.
Thus far however, USCIS has made it clear that generally, it is the law of the place where the marriage is celebrated that determines whether the marriage is legally valid for immigration purposes. They also clarify that all other relevant laws that apply to determine the bona-fides of an opposite-sex marriage will also apply in the same-sex context.
As of August 2013, 13 states in the United States recognize same-sex marriage (which should be distinguished from civil unions). These states are: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington. Additionally, same-sex marriage is recognized in the District of Columbia and by five Native American Tribes (Coquille Tribe (OR), Squamish Tribe (WA), Little Travers Bay Bands of Odawa Indians (MI), Pokagon Band of Potawatomi Indians (MI) and the Santa Ysabel Tribe (CA)).
Internationally, as of August 2013, approximately 15 countries also recognize same-sex marriage and allow same-sex couples to marry. These include: Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, Sweden and Uruguay. Similar to the situation in the U.S., several districts in Mexico have also legalized same-sex marriage.
It is important to remember that as USCIS treats same-sex couples the same as opposite-sex couples, USCIS has reminded applicants that all other relevant laws will be applied to determine the validity of the marriage. For example, if a same-sex couple who happen to be first-cousins marry in a country that allows same-sex marriage but prohibits the marriage of first-cousins, then the marriage will still be deemed invalid.
USCIS has 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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