Paraphrased from AILA LGBT Working Group
July 15, 2013
The deadline for submitting an Application to Register Permanent Residence or Adjust Status (I-485) for winners of the 2013 Diversity Visa (DV) lottery is fast approaching; an adjustment of status application must be approved or immigrant visa issued by September 30, 2013. With the decision of the U.S. Supreme Court in U.S. v. Windsor, 570 U.S. —, — S. Ct. —, 2013 WL 3196928 (2013), married same-sex couples are no longer barred from receiving federal benefits, including immigration benefits. If you are a DV lottery winner who is lesbian or gay and marriedto a foreign national, you can now apply for your same-sex spouse as a derivative. Moreover, if you are in a long-term relationship, but not yet married, if you marry before submitting the immigrant visa application, you may be able to include your spouse and step-children.
DOS guidance states that “failure to include the required biographic details of a spouse and children in a DV entry is cause for the entry’s disqualification. Applicants who later claim at the DV visa interview that they failed to accurately represent their family’s biographic details should be informed that such an omission mandates automatic disqualification of their entry.” Since prior to June 26, 2013, the date of the Windsor decision, a same-sex married couple was not recognized under U.S. immigration law, it seems clear that DOS could not penalize the couple for not listing a spouse on the lottery entry. Indeed, the DOS 2013 instructions clearly state: “11. CAN MY SAME-SEX SPOUSES BE INCLUDED IN A DV ENTRY? No, same-sex marriages are not recognized by immigration law for the purpose of immigrating to the United States. However, your same-sex partner is free to submit his/her own entry into the DV program.” Thus, whether or not the DV lottery winner was validly married at the time of submitting the lottery entry electronically, he or she should be able to include a same-sex spouse and his or her children as derivatives.
This is a rapidly evolving area of immigration law practice. Contact our Green Card Attorneys to schedule a consultation regarding these or other immigration questions.