Immigration Benefits for Same Sex Couples

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What Are The Immigration Benefits for Same-Sex Couples?

In light of some of the recent turmoil and negativity engulfing the world of immigration policy, we wanted to take an opportunity to pause, reflect, and shine the light on a particularly encouraging development from recent history with positive consequences for foreign nationals looking to work and live in the US.

One of the most meaningful and heartfelt experiences I have ever enjoyed as an immigration lawyer in New York was attending a green card through marriage interview with a couple who had been married in all but the legal sense since the early 1980s. Having your relationship evaluated, analyzed, and subject to interrogation, for most people, can be a bit intimidating, even stressful. But going through the records, pictures and photos from the last several decades brought palpable feelings of pride and accomplishment to an otherwise rigid and sometimes stressful event.

We have the privilege of working with many same sex couples. During the process, many express concerns about the possibility of heightened scrutiny and/or different treatment during the variety of different processes where spousal benefits for dependants are at issue. We want to reassure our readers, potential clients and existing clients that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” Matter of Zeleniak26 I&N Dec. 158  (BIA 2013). This includes any right or benefit conferred by the Federal Government.

In 2013, the US Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA). This was the provision which defined “spouse” and its related terms to signify married persons in a heterosexual relationship. In United States v. Windsor (2013), the U.S. Supreme Court declared Section 3 of DOMA unconstitutional under the Due Process Clause of the Fifth Amendment.

However, Section 2 of DOMA states to give legal relief to any state from recognizing same-sex marriages performed in other jurisdictions. But on June 26, 2015 the U.S. Supreme Court ruled in Obergefell v. Hodges that the 14th Amendment requires all U.S. state laws to recognize same-sex marriages. This left Section 2 of DOMA as superseded and unenforceable

As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes.  Just as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, they will apply all relevant laws to determine the validity of a same-sex marriage.

The Board of Immigration Appeals (BIA) case, Matter of Zeleniak “recognized the validity of same-sex marriage” and held that the “validity of a marriage under State law is generally governed by the law of the place of celebration of the marriage” and if the marriage is valid under that state’s law “the sole remaining inquiry” is the bona fide nature of the marriage.

This extension of benefits to same-sex couples has implications in both the immigrant and nonimmigrant contexts. Clearly this is relevant in the green card through marriage context, where a US Citizen (or Permanent Resident) files a “Petition for Alien Relative” on behalf of their spouse. Furthermore, if an individual is pursuing a “green card through employment,” a same-sex spouse would be able to obtain residual benefits as a dependent.

The ruling also extended the reduced required residence requirement for naturalization cases (from 5 years to 3 years) when applying for naturalization based on being married and living with a US citizen spouse for 3 years while a permanent resident (see ).  These benefits also extended to inadmissibility waivers where 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,” same-sex marriages are treated exactly the same as opposite-sex marriages.

In addition to the “immigrant” options discussed above, the extension of marital rights to same-sex couples includes benefits for dependent spouses in the “nonimmigrant” visa context.  For example, a spouse of an individual in the H-1B visa status can now obtain an H-4 visa as a dependent. Furthermore, if the principal beneficiary (the spouse in the H-1B visa status) is the beneficiary of an approved I-140 form, or if they were granted H-1B status extensions under sections 106 (a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), the spouse in the H-4 status is eligible to apply for work authorization.

Likewise, same sex spouses of other nonimmigrant visa statuses can obtain dependent visas, some of which can lead to work authorization (e.g., E-3D and L-2).