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SAME SEX MARRIAGE AND FAMILY BASED IMMIGRATION
by Ann Fischer, Gardi, Haught, Fischer & Bhosale LTD
01/22/2014

The United States v Windsor decision by the United States Supreme Court has a major impact on spousal and fiancé visas.  “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.”  Statement from Secretary of Homeland Security Janet Napolitano on July 1, 2013.

Effective as of July 2013 same sex couples are able to apply for fiancé and spousal visas in the same manner as opposite sex couples.  Immigration officers must adjudicate fiancé and spousal petitions against the same standards as opposite couples.  This new direction also allows for stepchildren acquired through same sex marriage to obtain an immigrant visa through derivative status.

In order to qualify for a spousal visa, your marriage must have occurred in a state or country where same sex marriages are legally recognized.  At this time, USCIS does not recognize domestic partnerships and civil unions as “marriage” for immigration benefit purposes.   If your fiancé is in a country that does not recognize same sex marriages as lawful marriages, your fiancé is still eligible for a K-1 visa so long as the marriage will take place in a location that does recognize same sex marriages as lawful marriages.  The fiancé visa requirements, such as the marriage occurring within 90 days of entry to the United States, will be applied to same sex fiancé visa petitions in same manner as opposite sex fiancé visa petitions.

A spousal or fiancé visa petition was that previously denied based solely on the marriage being between individuals of the same sex, the petitioner can request that USCIS reopen their file and adjudicate it without filing a new petition or paying another filing fee.  USCIS indicated that they will internally identify petitions that were denied on this basis after February 23, 2011 and send notifications to the petitioners.  However, in order to ensure their file is identified it is beneficial for the Petitioner or their representative to notify USCIS of their specific case.  If a petition was previously denied based solely on the marriage being between individuals of the same sex prior to February 23, 2011, the Petitioner has until March 31, 2014 to notify USCIS that they want their file adjudicated in accordance with the current directive.  If the petitioner fails to notify USCIS in a timely manner, they will not be able to have their petition adjudicated but rather will have to file a new petition and pay a new filing fee.

If you need assistance with the filing of a fiancé or spousal visa or if you need assistance having a previously denied file reopened please feel free to contact me, Ann Fischer, at 847.944.9400 or email me at afischer@gardilaw.com

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