Secretary of Homeland Security Janet Napolitano affirmed in a statement on Monday that marriage-based green card applications for gay bi-national couples will be treated just the same as they are for straight couples in the wake of the Supreme Court ruling against the Defense of Marriage Act.
“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly,” Napolitano said. “To that end, effective immediately, I have 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.”
Immediately following the ruling, Napolitano had pledged to implement the ruling against the DOMA, but never before explicitly affirmed that meant the estimated 28,500 married gay bi-national couples in the United States could apply for visas through the I-130 marriage-based green card application process.
One couple has already received notification that the green card application was accepted. On Friday, Julian Marsh and Traian Popov, a Fort Lauderdale, Fla.-based couple, was the first couple in history to receive notification their I-130 marriage-based green card application was approved.
Napolitano’s statement is followed by a Q&A on what the Supreme Court ruling means for gay bi-national couples. The Q&A affirms they’re now eligible for a visa even if they live in a state that doesn’t recognize same-sex marriage.
Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?
A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your 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 your marriage.
Q2: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?
A2: Yes, you can file the petition. 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, we may provide further guidance on this question going forward.