By: Grant W. Godfrey
We have previously written about the recent Supreme Court decision striking down a key provision in the federal 1996 Defense of Marriage Act (“DOMA”). DOMA had prohibited the Federal Government from recognizing same-sex marriages by defining the word “marriage” as a legal union between one man and one woman. We also provided an update when the U.S. Citizenship & Immigration Services (“CIS”) announced that it would allow Same-Sex Spouses to sponsor each other for Green Cards.
The CIS has updated its Frequently Asked Questions (“FAQ”) informing the public that it will accept applications for all benefits that heterosexual spouses are provided. The U.S. Department of State (“DOS”) has also issued its own FAQ stating that it will process visa applications for same-sex spouses in the same way that it processes applications from heterosexual spouses.
It is important to note that at this time, same-sex partners in civil unions and domestic partnerships are not allowed to sponsor each other for immigration benefits. As long as the same-sex spouses were married in a jurisdiction that recognizes same-sex marriage, the marriage should be considered legally valid for immigration purposes. CIS has previously stated that there may be circumstances in which it will look at the law where the spouses are living to determine if the marriage is valid for immigration purposes, however this interpretation directly contradicts recent case-law stating that the only relevant consideration is the jurisdiction where the marriage occurred. It is our expectation that CIS will rarely, if ever, look to the law of the state where the spouses are living to determine if the marriage is valid.
Please do not hesitate to contact the attorneys in our Immigration Practice with any questions, or to explore sponsorship opportunities.