Immigration for Same-Sex Partners: Frequently Asked Questions

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Since the Supreme Court’s ruling in 2013 that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, USCIS has fully accepted petitions and applications on behalf of bi-national LGBT couples who are legally married. Immigration visa petitions filed on behalf of same-sex couples are adjudicated in the exact same manner as those filed on behalf of opposite-sex couples. Berardi Immigration Law has filed numerous immigration petitions on behalf of same-sex couples with a 100% rate of success. Below, Managing Partner Rosanna Berardi answers some of the most frequently asked questions.

Q. I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I sponsor my spouse for a family-based immigrant visa?

A. Yes, you can sponsor your spouse. Your eligibility to petition for your spouse is determined by USCIS according to applicable immigration law and will not be denied as a result of the same-sex nature of your marriage.

Q. I am a U.S. citizen who is engaged to be married to a foreign national of the same sex. Can I file a fiancé petition for him or her?

A. Yes, you are able to sponsor your spouse for a fiancé visa. As long as all other immigration requirements are met, a same-sex fiancé visa may allow your fiancé to enter the United States for marriage.

Q. My spouse and I were married in a U.S. state or a foreign country that recognizes same-sex marriage, but we live in a state that does not. Can I still sponsor my spouse for an immigrant visa petition?

A. Absolutely. As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. The domicile state’s laws and policies on same-sex marriages do not bear on whether USCIS recognizes a marriage as valid.

Q. What about immigration benefits other than for immediate relatives, family preference immigrants, or fiancés? For example, in cases where the benefit depends on the existence of a “marriage” or on one’s status as a “spouse.” Do same-sex marriages qualify as marriages for these benefits?  

A. Yes they do. Under U.S. immigration law, eligibility for a wide range of benefits depends on the meaning of the terms “marriage” or “spouse.” Some examples include an alien who seeks to qualify as a spouse accompanying or following to join a family-sponsored immigrant, an employment-based immigrant, certain subcategories of nonimmigrants, or an alien who has been granted refugee status or asylum. In all of these cases, a same-sex marriage is treated exactly the same as an opposite-sex marriage.

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