Permanent residence based on same-sex marriage

IN United States vs. Windsor, 570 U.S. 744 (2013) (Docket No. 12-307), the Supreme Court held that Federal restrictions of the terms “marriage” and “spouse” to marriages between a man and a woman were unconstitutional.

The Court invalidated Section 3 of the Defense of Marriage Act (DOMA), which did not allow Federal Government recognition of same-sex marriages under Federal laws, or for Federal programs. After the Court’s decision in the Windsor case, the USCIS has considered same-sex, marriage-based immigrant petitions in the same way as those involving marriage with the opposite sex.

As a result, a U.S. citizen or permanent resident can now petition his/her spouse or fiancé(e) to get a green card.

As with marriages between persons of the opposite sex, a valid marriage between a same-sex couple is required. The law of the place in which the marriage took place determines whether the marriage is valid for immigration purposes. The same-sex couple does not need to be residents of the state or foreign country in which the marriage took place. A civil union or domestic partnership cannot be the basis for a same-sex, marriage-based immigrant petition; a relationship legally considered to be a marriage where it took place establishes eligibility.

If the marriage occurred in a state or foreign country in which same-sex marriages are recognized, then the U.S. citizen or permanent resident spouse can file an I-130 petition and adjustment of status application (if the non-U.S. citizen/permanent resident spouse is in the U.S.) or immigrant visa application (if the non-U.S. citizen/permanent resident spouse is outside the U.S.). As with marriages between the opposite sex, the same-sex couple will need to demonstrate that the marriage is a real marriage and not merely for immigration purposes.

But what if the marriage has yet to occur, and the non-U.S. citizen/permanent resident person in the relationship resides in a foreign country that does not recognize same-sex marriages, and cannot travel to the U.S.?

In such a case, a U.S. citizen can file an I-129f petition for alien fiancé(e), which would allow his/her foreign national fiancé(e) to travel to the U.S. under a K-1 visa to get married. The couple would have to get married in a state that recognizes same-sex marriages within 90 days of the foreign national’s arrival. After marriage, an I-130 petition and I-485 adjustment of status (changing status from K-1 to permanent resident) would need to be filed. Filing an I-129f fiancé(e) petition is only available to a U.S. citizen and not a permanent resident.

For cases involving a permanent resident petitioner, the couple would need to find a foreign nation to which they can both travel and that recognizes same-sex marriages, and get married there. Thereafter, the permanent resident petitioner can file an I-130 petition on behalf of his/her spouse, who would undergo consular processing for an immigrant visa in the country of residency when available.

Certain other requirements exist to obtain permanent residence. It is also worth noting that eligibility for other immigration benefits is now available to a same-sex spouse. It is therefore recommended that you seek the advice of an experienced attorney.

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Darrick V. Tan, Esq. is admitted to practice law in California and Nevada. Mr. Tan is a graduate of UCLA and Southwestern University School of Law. He is a member of the American Immigration Lawyers Association and the Consumers Attorney Association of Los Angeles. He has also served on the Board of Governors of the Philippine American Bar Association.

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LAW OFFICES OF DARRICK V. TAN, 3580 Wilshire Boulevard, Suite 900, Los Angeles, CA 90010. Tel: 323-639-0277. Email: info@dtanlaw.com

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