Following the U.S. Supreme Court’s release of its decision in United States v. Windsor, No. 12-307 (June 26, 2013), DHS Secretary Janet Napolitano issued an updated statement confirming that “President Obama [had] directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly.” She said, “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.”
In an FAQ, DHS confirmed that same-sex couples can file an immigrant visa petition and applicable adjustment of status application effective immediately. If a couple is married in a U.S. state that recognizes same-sex marriage, but live in a state that does not, the U.S. citizen spouse may still file an immigrant visa petition for his/her spouse. USCIS indicated that it will look to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. DHS also indicated that the general rule is subject to limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. DHS stated that it may provide further guidance on the subject.
On June 28, USCIS approved the first same-sex marriage immigrant visa petition for a couple who were married in New York but currently reside in Florida, a state that does not currently recognize such unions. We will continue to monitor the effects of Windsor on employers and individuals.