Spouse, Fiance/e and Dependent Petitions for Same-Sex Partners

On June 26, 2013, the Supreme Court, in the landmark case of United Stated v. Windsor, struck down Section 3 of the Defense of Marriage Act (DOMA) which defined “marriage as only a legal union between one man and one woman as husband and wife, and the word “spouse’ as referring  only to a person of the opposite sex who is a husband or a wife.”

The decision paves the way for the legalization of undocumented gays, lesbians or transgenders (LGBT) who are already in the United States and are married to their same-sex partners.  The U.S. Citizenship and Immigration Services (USCIS) was quick to report that just two (2) days after the Supreme Court decision, it has issued the first green card to the Bulgarian same-sex spouse of a United States citizen from Florida.

The decision paves the way for the legalization of undocumented gays, lesbians or trans genders (LGBT) who are already in the United States and are married to their same-sex partners. The U.S. Citizenship and Immigration Services (USCIS) was quick to report that just two (2) days after the Supreme Court decision, it has issued the first green card to the Bulgarian same-sex spouse of a United States citizen from Florida.

USCIS will recognize marriages between same-sex couples so long as they are valid in the place where the marriage was celebrated, and will now confer immigration benefits to LGBT or same-sex spouses of U.S. citizens and legal permanent residents. Same-sex marriage is now legal in the District of Columbia and nineteen (19) States – California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington. Thus, same-sex partners who are from other states who do not recognize same-sex unions (like Utah) but who got married in any of these 19 States that allow same-sex marriages, are considered to have a valid marriage and the U.S. citizen spouse can file a petition for his spouse in Utah in order for his same-sex spouse to file for adjustment of status.

For bi-national couples who are unable to celebrate their marriage within the 17 states in the United States that currently recognize same-sex unions, same-sex spouses may visit other countries that have also legalized same-sex marriages. There are now sixteen (16) countries which recognize and allow same-sex marriages –   Argentina, Belgium, Brazil, Canada, Denmark, England (and Wales), France, Iceland, Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, Sweden, and Uruguay. Like the United States, same-sex marriage is legal only in some states in Mexico.

What other immigration petitions or benefits can LGBT spouses/partners avail of?

A Lawful Permanent Resident or a United States citizen may file for an immigrant petition for his/her LGBT or same-sex spouse who is abroad. A United States citizen may also file for a fiancé/e petition to bring their partners residing abroad to the United States so they can marry within 90 days of the fiance/es’ arrival. However, only United States citizens, not Lawful Permanent Residents, may file for fiancé/e petitions. USCIS will take each application on a case by case basis, and will look into the bona fides of the relationship.

Other immigration benefits that LGBT spouses may now avail of include derivative visas for spouses of nonimmigrant workers (for example, H-1 and L visas), re-opening of removal orders, hardship waivers for people who have been deported or barred from re-entry, eligibility for cancellation of removal, hardship waivers for minor offenses, and other such considerations that are usually reserved only for the spouses of United States citizens.

Atty. Aurora Vega-Buzon is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; auvega@ctvattys.com.