Same-sex marriages and immigration

The U. S. Citizenship and Immigration Services has posted new Frequently Asked Questions regarding same-sex married couples.

Here is the link.

Here is the information.

Same-Sex Marriages

Statement from Secretary of Homeland Security Janet Napolitano on July 1, 2013:

“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. 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.”

Frequently Asked Questions

Petitioning for my Spouse

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. 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 or fiancée petition for him or her?
A2. Yes.  You may file a Form I-129F.  As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for marriage.

Q3: 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?
A3: 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.

Applying for Benefits 

New Applications and Petitions:

Q4.  Do I have to wait until USCIS issues new regulations, guidance or forms to apply for benefits based upon the Supreme Court decision in Windsor?
A4.  No.  You may apply right away for benefits for which you believe you are eligible.

Previously Submitted Applications and Petitions:

Q5. My Form I-130, or other petition or application, was previously denied solely because of DOMA.  What should I do?
A5.  USCIS will reopen those petitions or applications that were denied solely because of DOMA section 3.  If such a case is known to us or brought to our attention, USCIS will reconsider its prior decision, as well as reopen associated applications to the extent they were also denied as a result of the denial of the Form I-130 (such as concurrently filed Forms I-485).

  • USCIS will make a concerted effort to identify denials of I-130 petitions that occurred on the basis of DOMA section 3 after February 23, 2011.  USCIS will also make a concerted effort to notify you (the petitioner), at your last known address, of the reopening and request updated information in support of your petition.
  • To alert USCIS of an I-130 petition that you believe falls within this category, USCIS recommends that you send an e-mail from an account that can receive replies to USCIS atUSCIS-626@uscis.dhs.gov stating that you have a pending petition.  USCIS will reply to that message with follow-up questions as necessary to update your petition for processing.  (DHS has sought to keep track of DOMA denials that occurred after the President determined not to defend Section 3 of DOMA on February 23, 2011, although to ensure that DHS is aware of your denial, please feel free to alert USCIS if you believe your application falls within this category.)
  • For denials of I-130 petitions that occurred prior to February 23, 2011, you must notify USCIS by March 31, 2014, in order for USCIS to act on its own to reopen your I-130 petition.  Please notify USCIS by sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov and noting that you believe that your petition was denied on the basis of DOMA section 3.

Once your I-130 petition is reopened, it will be considered anew—without regard to DOMA section 3—based upon the information previously submitted and any new information provided.   USCIS will also concurrently reopen associated applications as may be necessary to the extent they also were denied as a result of the denial of the I-130 petition (such as concurrently filed Form I-485 applications).

Additionally, if your work authorization was denied or revoked based upon the denial of the Form I-485, the denial or revocation will be concurrently reconsidered, and a new Employment Authorization Document issued, to the extent necessary.  If a decision cannot be rendered immediately on a reopened adjustment of status application, USCIS will either (1) immediately process any pending or denied application for employment authorization or (2) reopen and approve any previously revoked application for employment authorization.  If USCIS has already obtained the applicant’s biometric information at an Application Support Center (ASC), a new Employment Authorization Document (EAD) will be produced and delivered without any further action by the applicant.  In cases where USCIS has not yet obtained the required biometric information, the applicant will be scheduled for an ASC appointment.

  • If another type of petition or application (other than an I-130 petition or associated application) was denied based solely upon DOMA section 3, please notify USCIS by March 31, 2014, by sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov as directed above.  USCIS will promptly consider whether reopening of that petition or application is appropriate under the law and the circumstances presented.

No fee will be required to request USCIS to consider reopening your petition or application pursuant to this procedure.  In the alternative to this procedure, you may file a new petition or application to the extent provided by law and according to the form instructions including payment of applicable fees as directed.

Changes in Eligibility Based on Same-Sex Marriage

Q6. What about immigration benefits other than for immediate relatives, family-preference immigrants, and fiancés or fiancées?  In cases where the immigration laws condition the benefit on the existence of a “marriage” or on one’s status as a “spouse,” will same-sex marriages qualify as marriages for purposes of these benefits?
A6. Yes.  Under the U.S. immigration laws, eligibility for a wide range of benefits depends on the meanings of the terms “marriage” or “spouse.”  Examples include (but are not limited to) 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 will be treated exactly the same as an opposite-sex marriage.

Q7. If I am seeking admission under a program that requires me to be a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful permanent resident, could a same-sex marriage affect my eligibility?
A7. There are some situations in which either the individual’s own marriage, or that of his or her parents, can affect  whether the individual will qualify as a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful permanent resident.  In these cases, same-sex marriages will be treated exactly the same as opposite-sex marriages.

Residency Requirements

Q8. Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization?
A8. Yes.  As a general matter, naturalization requires five years of residence in the United States following admission as a lawful permanent resident.  But, according to the immigration laws, naturalization is available after a required residence period of three years, if during that three year period you have been living in “marital union” with a U.S. citizen “spouse” and your spouse has been a United States citizen.  For this purpose, same-sex marriages will be treated exactly the same as opposite-sex marriages.

Inadmissibility Waivers 

Q9. I know that the immigration laws allow discretionary waivers of certain inadmissibility grounds under certain circumstances.  For some of those waivers, the person has to be the “spouse” or other family member of a U.S. citizen or of a lawful permanent resident.  In cases where the required family relationship depends on whether the individual or the individual’s parents meet the definition of “spouse,” will same-sex marriages count for that purpose?
A9.Yes.   Whenever the immigration laws condition eligibility for a waiver on the existence of a “marriage” or status as a “spouse,” same-sex marriages will be treated exactly the same as opposite-sex marriages.

cropped-whymarriagemattersalabama-logo1.jpg

Judge rules for marriage equality in Ohio

While he didn’t say Ohio must allow same sex couples to marry, U. S. District Judge Timothy S. Black ruled that Ohio must recognize a same-sex marriage that was performed in another state.

The decision by U.S. District Judge Timothy S. Black to grant John Arthur and his husband, Jim Obergefell, a temporary restraining order against the 2004 Ohio law banning recognition of gay marriage came despite a warning from the state’s attorney general that it could contribute to a broad rewriting of Ohio law in favor of such unions.

John Arthur, one of the grooms, has ALS, or amyotrophic lateral sclerosis, and is expected to die in the near future. They were flown to Maryland to marry in a special medical jet and the wedding took place in the plane on the tarmac in Baltimore.

Image

Picture Credit – Baltimore Sun

Had Arthur died without the state recognizing their marriage and his husband’s name, Jim Obergefell, on the death certificate they would have suffered “severe harm.”

The judge said that Ohio recognizes marriages from other states that would not be allowed in Ohio, such as first-cousin marriages or marriages involving children younger than what Ohio allows. He said the state cannot pick and choose which out of state marriages to recognize.

This ruling only affects this couple at this point. But it should be broadened to allow all same-sex couples in Ohio who are wed in other states to have their marriages recognized.

Read more in the LA Times.

Why I have been absent

The remains of the historic Lewis-Huey-McElroy House, ca. 1895.

One month ago today the historic home that my partner and I shared burned. No one was at home when the fire began, and no one was injured. We lost most of what we owned, and are still playing catch up as far as day to day life goes.

That is why there have been no posts during the past few weeks. Hopefully, within a week or so, my life will be such that I can resume posting important information about marriage equality. In the meantime, there is still helpful information on this site…take a look around.

Marriage News Watch

Matt Baume with this week’s Marriage News Watch. Two cases are up for a ruling by SCOTUS, and we should know in September if either will be reviewed.

And Young Conservatives for the Freedom to Marry are disappointed in the GOP platform.

GOP Platform – you decide

The Republican Party has proposed a platform that does nothing for the LGBT community.
Here is what the Republicans say about marriage and the so-called activist judges.

A serious threat to our country’s constitutional order, perhaps even more dangerous than presidential malfeasance, is an activist judiciary, in which some judges usurp the powers reserved to other branches of government. A blatant example has been the court-ordered redefinition of marriage in several States. This is more than a matter of warring legal concepts and ideals. It is an assault on the foundations of our society, challenging the institution which, for thousands of years in virtually every civilization, has been entrusted with the rearing of children and the transmission of cultural values.

As for marriage itself:

We reaffirm our support for a constitutional amendment defining marriage as the union of one man and one woman.

and:

We recognize and honor the courageous efforts of those who bear the many burdens of parenting alone, even as we believe that marriage, the union of one man and one woman must be upheld as the national standard, a goal to stand for, encourage, and promote through laws governing marriage.

And then they follow with:

We embrace the principle that all Americans should be treated with respect and dignity.

Somehow the first three quotes do not add up to equal the last one.

But you have followed the posts on this site, and read the text of the marriage plank in the Democratic Party proposed platform.

We support the right of all families to have equal respect, responsibilities, and protections under the law. We support marriage equality and support the movement to secure equal treatment under law for same-sex couples. We also support the freedom of churches and religious entities to decide how to administer marriage as a religious sacrament without government interference.

We oppose discriminatory federal and state constitutional amendments and other attempts to deny equal protection of the laws to committed same-sex couples who seek the same respect and responsibilities as other married couples. We support the full repeal of the so-called Defense of Marriage Act and the passage of the Respect for Marriage Act.

We are a non-partisan group, but we believe in the issue of equality. You must decide which party, and which candidate, represents your view. Please respond with a comment letting us know: Republican or Democrat.

 

Marriage News Watch

Matt Bauer with his Marriage News Watch. Not smooth sailing for the marriage plank in the Democratic platform. And the importance of the fights in various states where marriage is coming up for a vote.