By METODY A. TILEV & JENNIFER L. GAWRONSKI
For years, proposed legislation and initiatives circulated with the goal of giving same-sex couples the same family-immigration benefits afforded heterosexual couples. Following last week’s landmark Supreme Court decision in U.S. v. Windsor, which struck down Section 3 of the Defense of Marriage Act, these benefits finally have become a reality.
While Windsor’s effect on the complex federal bureaucracy continues to unfold, concrete policy has been established in immigration. Heeding President Obama’s directive for the swift and smooth implementation of the Windsor decision and its implication for federal benefits, Secretary of Homeland Security Janet Napolitano announced that she “has directed the 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 practical implications of this policy shift are numerous.
U.S. citizens may now file a family immigration petition (Form 1-130) on behalf of their same-sex spouse. It is immaterial whether the couple currently resides in a state that recognizes their same-sex marriage because USCIS looks to the law of the jurisdiction where the marriage took place to determine its validity for immigration purposes. Furthermore, civil unions and domestic partnerships will be treated as marriages.
The new USCIS policy also affects how immigration petitions filed by same-sex spouses are processed. Same-sex spouses of U.S. citizens now will be considered immediate relatives for immigration purposes. As a result, they will be able to file an application to adjust their status (Form I-485) to permanent resident (“green card”) simultaneously with their immigration petition. Same-sex spouses also can now file a petition for a labor authorization (Form I-765) simultaneously with their immigration petition. Labor authorization petitions usually are approved quickly, which will allow the sponsored spouse to work legally in the country.
Same-sex spouses could be the beneficiary of an immigration petition even if they are out of legal status. They could also simultaneously petition to adjust their status to a permanent residency while remaining in the United States.
The new USCIS policy also benefits couples that are not yet legally married. As with heterosexual couples, an LGBT citizen should now be able to sponsor a person living abroad to come to the United States on a fiancée visa for the purposes of getting married to the U.S. citizen, then subsequently file for a permanent residency.
The children of same-sex couples will be treated in the same manner as children of heterosexual couples for the purposes of obtaining immigration benefits through their parents and being listed as dependant beneficiaries on immigration petitions.
USCIS began issuing green cards to the same-sex spouses of U.S. citizens days after the Windsor decision and will process same-sex couples at the same speed as heterosexual couples. Furthermore, in anticipation of a potential ruling from the Supreme Court on DOMA, USCIS has kept a list for the past two years of same-sex couples whose green card petitions were denied. Those previous denials will be reversed and applicants will not have to reapply so long as no other issues arise, which will save those couples both time and filing fees. This is a good indication that USCIS is determined to follow its policy and quickly bring a resolution to all those same-sex couples that struggled for years to stay together under DOMA.