USCIS released new guidelines for legally married same-sex couples in the wake of the US Supreme Court's Windsor decision holding the Defense of Marriage Act (DOMA) unconstitutional. USCIS will review immigrant visa petitions on behalf of a same-sex spouse in the same manner as an opposite-sex spouse. U.S. citizens and Lawful Permanent Residents may immediately file a Form I-130 immigrant visa petition for their same-sex spouse. U.S. citizens engaged to a foreign national of the same-sex may also now file a fiance or fiancee visa petition for him or her. In evaluating the petition, USCIS will generally look to the law of the place where the marriage took place.
USCIS also announced that it will begin performing a system-wide review
of denied green card petitions for same-sex couples that were denied solely
because of DOMA. USCIS will make a concerted effort to review those petitions
filed after February 23, 2011, which is when the Obama administration
stopped defending DOMA. Same-sex couples whose I-130 petitions were denied
based on DOMA can alert USCIS via email at
USCIS-626@uscis.dhs.gov, stating they have a pending petition. Same sex-couples with DOMA denials
occurring before that date
must notify USCIS by March 31, 2014 via the same email address so that USCIS can reopen those cases for review.
Moreover, if another type of petition, other than the I-130, was denied
solely based on DOMA, applicants can notify USCIS using the same email
address. No fee will be required to request USCIS to reopen the petition
using this procedure.
Once the I-130 petition is reopened, USCIS will reconsider the application,
as well as reopen any associated applications to the extent they were
also denied as a result of the I-130 denial (such as concurrently filed
I-485 applications). USCIS will also reconsider applications for work
authorization that were denied or revoked based on the denial of the I-485.
If USCIS is unable to immediately adjudicated the I-485 application, USCIS
will either 1) immediately process any pending or denied employment authorization
application or 2) reopen and approved any previously revoked employment
authorization application. For applicants who have already submitted their
biometric information at an Application Support Center (ASC), USCIS will
issue a new Employment Authorization Document.
Immigration benefits based on same-sex marriage other than for immediate
relatives are also clarified in the USCIS guidelines. Alien spouses accompanying
or following to join their same-sex spouse based on an employment-based
petition, non-immigrant visa, or refugee or asylum application will be
afforded the same treatment as opposite-sex couples. The same changes
in eligibility apply to children of same-sex married couples. Moreover,
same-sex married couples will have the same residency requirements for
naturalization based on marriage to a US citizen spouse, as well as the
same eligibility for waivers of certain inadmissibility grounds.