In the June 26, 2013, decision in United States v. Windsor, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) and opened the door to a variety of federal benefits, including immigration benefits, to same-sex couples. Since the ruling was issued, the U.S. Department of Homeland Security through its various sub-agencies and the U.S. Department of State have issued guidance and clarified procedures related to the processing of immigration benefits for same-sex spouses. In light of this new guidance, we are providing a summary of the implementation efforts from U.S. immigration agencies post-Windsor.
U.S. Citizenship and Immigration Services (USCIS)
USCIS has issued guidance in the form of Frequently Asked Questions (USCIS FAQ) reiterating that same-sex marriages will be treated exactly the same as opposite-sex marriages. In determining whether the marriage is legally valid for immigration purposes, USCIS will consider the law of the "place of celebration." That is, if the marriage took place in a U.S. state or foreign country that recognizes same-sex marriages, the marriage will be valid for immigration purposes, regardless of where the couple plans to reside. As of August 2013, more than a dozen U.S. states, plus the District of Columbia, have recognized full marriage equality. Marriage for same-sex couples is also recognized in 15 countries. USCIS has not yet addressed whether it will recognize domestic partnerships or civil unions for the purposes of applying for immigration benefits.
The USCIS FAQ specifies that same-sex spouses are eligible to accompany or follow to join a family-based immigrant, an employment-based immigrant, certain subcategories of nonimmigrants and foreign nationals granted asylum or refugee status. In addition, other immigration benefits for same-sex couples include their eligibility to qualify for reduced residence periods for naturalization if married to a U.S. citizen and for discretionary waivers of inadmissibility where a spousal relationship to a U.S. citizen or a lawful permanent resident is a condition.
USCIS has further stated that it will make an effort to identify and reopen cases that were denied solely because of Section 3 of DOMA, if the case was filed after February 23, 2011. Nevertheless, USCIS recommends that same-sex petitioners notify USCIS if they believe they fall within this category.
Department of State (DOS)
DOS posted its Frequently Asked Questions for Post-Defense of Marriage Act (DOS FAQ), stating that "[e]ffective immediately, U.S. embassies and consulates will adjudicate visa applications that are based on same-sex marriages in the same way as [they] adjudicate applications for opposite gender spouses." Accordingly, DOS issued a detailed cable updating its Foreign Affairs Manual (FAM) to reflect the Obama administration's policy on same-sex marriages and immigration benefits. In its guidance, DOS makes it clear that same-sex marriages are valid for immigration purposes as long as the marriage is recognized in the "place of celebration." The DOS goes even further by stating that the same-sex marriage will be valid even if the applicant is applying in a country where same-sex marriages are illegal.
The DOS FAQ has also confirmed that it will not recognize civil unions and domestic partnerships for the purpose of applying for immigration benefits. However, both same-sex and opposite-sex couples continue to be eligible for B-2 visas to accompany or follow to join a principal nonimmigrant visa holder even if they are not married.
The DOS FAQ also states that step children acquired through a same-sex marriage qualify for dependent benefits as long as the marriage took place before the child turned 18.
U.S. Immigration and Customs Enforcement (ICE)
The good news for students is that ICE and DOS formally issued guidance to authorize the issuance of Form I-20, "Certificates of Eligibility for Nonimmigrant Status," to a same-sex spouse of a qualifying F-1 or M-1 nonimmigrant who is seeking admission into the U.S. as an F-2 or M-2 dependent.
U.S. Customs and Border Protection (CBP)
CBP has yet to issue any guidance to its agents at U.S. ports of entry on how to administer the admission of an individual based on a same-sex marriage. This primarily affects foreign nationals with Canadian passports. Canadians traveling to the U.S. in a nonimmigrant status (L-1B, H-1B, TN, O-1, F-1, etc.) are not required to apply for a visa at a U.S. consulate before traveling to the U.S. Instead they apply for admission directly with a CBP officer at an airport or land border. A Canadian spouse in a valid same-sex marriage who intends to enter the U.S. as a nonimmigrant dependent based upon his or her marriage may have problems being admitted due to the lack of CBP guidance. Until CBP issues guidance consistent with Windsor, the best practice may be to seek the advice from the port director before seeking entry to the U.S.