Same-Sex Marriages and Immigration

Same-Sex Marriages and Immigration:

Since the decision in United States v. Windsor (“Windsor”), where the U.S. Supreme Court held Section 3 of the Defense of Marriage Act is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment, the United States Citizenship and Immigration Services (“USCIS”) has been quick to act.
 
WHAT DOES THE WINDSOR DECISION MEAN FOR SAME-SEX MARRIAGES IN IMMIGRATION PROCEEDINGS?

For immigration purposes the Windsor decision means that same-sex couples will now be treated the same as opposite-sex couples. This includes those petitioning for a spouse or a fiancé/fiancée, those seeking to accompany or following to join a family-sponsored immigrant, and/or seeking any immigration benefit. For example, an alien who obtains permanent residency based on his marriage to a U.S. citizen (“USC”) will be eligible for citizenship three (3) years after acquiring permanent residency just like opposite-sex marriages.
For couples who are married the validity of the marriage depends on where the marriage took place and not where the couple lives. This means that as long as the couple got married in a place which recognizes same-sex marriages, the marriage is valid. For example, if the couple got married in Massachusetts (which recognizes same-sex marriages), but lives in Texas (which does not recognize same-sex marriages) the marriage is valid because it occurred in a place where the marriage was legitimate.
It should be noted those immigration benefits requiring the label of a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a USC or permanent resident may be affected by a same-sex marriage. Nonetheless, these cases will be treated the same as an opposite-sex marriage.

WHAT IF MY PREVIOUS PETITION WAS DENIED BASED ON A SAME-SEX MARRIAGE?

Due to USCIS’ preparation (they have kept track of all Form I-130 Petition for Alien Relative (“Form I-130″) which had been denied on the basis of same-sex marriages after February 23, 2011), USCIS has begun reopening these cases and making an effort to contact the petitioner of such. A reopened Form I-130 will be considered anew. Additionally, any concurrently filed forms, such as Form I-485 and Form I-765, will also be considered anew at the time of reopening. Any denials of Form I-130 prior to February 23, 2011 or denials of any other form (regardless of date and besides those forms concurrently filed with Form I-130 after the February date) must be brought to the attention of USCIS by March 31, 2014 via e-mail at USCIS-626@uscis.dhs.gov. Please note reopened matters will not require additional fees. Petitioners also have the option of e-mailing USCIS in those matters where the case was denied after the February date.
It should be noted as USCIS begins to reopen these matters the petitioner may be contacted for updated information to support the petition.
As always, if you have any questions regarding the law it is best to seek the help of an attorney.

By: Elizabeth Oaxaca
Elizabeth Oaxaca is an Associate at Alimohammad & Zafar, PLLC. She specializes in immigration, family, probate, and guardianship law. She volunteers her immigration skills with several organizations in the Houston and surrounding areas, and has written on numerous immigration topics. She received her undergraduate degree from the University of St. Thomas in 2008 and her law degree from the University of Houston in 2011.