Guest Author Julianne Cassin Sharp: Across Borders – What the Windsor decision ruling means for immigration

J  C  Sharp 2_RecommendedBy Julianne Cassin Sharp
Partner, Jaffe Law

In U.S. v. Windsor, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. This decision was the final appeal in the U.S. legal system and led to immediate changes under U.S. immigration law related to the granting of federal benefits, including immigration benefits, to same-sex couples.

This Supreme Court decision paved the way for a large variety of immigration benefits for foreign nationals who are married or engaged to U.S. citizens. The U.S. Citizenship and Immigration Services (USCIS) had been tracking all I-130 alien relative petitions that had been denied based on DOMA since February 23, 2011, which is the date President Obama decided not to oppose the lawsuit challenging the constitutionality of this law. As the result of Windsor, USCIS unilaterally reopened all alien relative petitions and related adjustment of status (“green card”) applications that had been denied based on DOMA since that date, without requiring any further action by the petitioners or beneficiaries in these cases.

Because of this landmark case, on June 26, 2013, millions of previously ineligible individuals could now benefit from fiancé petitions, could potentially qualify for waivers of inadmissibility and for cancellation of removal based on their marriages to U.S. citizens, and could also potentially qualify to file for adjustment of status (permanent residence) as spouses of U.S. citizens at the same time that a sponsoring petition was submitted to USCIS.

A significant issue immediately following the Supreme Court’s ruling was whether Immigrant Petitions would be accepted from same-sex couples who were legally married, but residing, or intending to reside, in a state that did not recognize same-sex marriage. However, since that initial period of ambiguity, USCIS has clarified that it will accept petitions from same-sex couples who reside in a state that does not recognize same-sex marriage, as long as the marriage was celebrated in a state that does recognize such marriages. Therefore, while there remains a struggle for many benefits to be recognized because not all states recognize same-sex marriages, awarding of immigration benefits under these circumstances fortunately does not depend on whether the couple resides in a state that recognizes such a union at the time of application.

No waiting period to file for immigration benefits

Following Windsor, USCIS publicly announced that same-sex marriages generally were to be treated in the same manner as opposite-sex marriages. USCIS also stated that same-sex spouses did not need to wait for the issuance of any revised forms, regulations, or guidance before filing for U.S. immigration benefits. Based on Windsor, along with instructions from President Barack Obama and Secretary of the Department of Homeland Security Janet Napolitano, the USCIS immediately started approving benefits for same-sex spouses.

Immigration benefits for fiancé/es and spouses

A U.S. citizen (USC) or lawful permanent resident (LPR) who is married to a same-sex partner may now file a family based petition to sponsor the foreign national spouse for a green card. In the case of a same-sex spouse of a U.S. citizen, the Beneficiary would also be eligible to file an I-485 application to adjust status based upon the I-130 family-based petition, assuming the foreign national is in the U.S. and all other legal and procedural requirements are met.

For a USC who is engaged to marry a same-sex partner, the I-129F, Petition for Alien Fiancé/e may now be used. Once approved, the foreign national partner can apply for a K-1 Fiancé/e visa at a U.S. Embassy or Consulate overseas, and then enter the United States to wed the USC petitioner. Other immigration benefits are also now potentially available because of the ruling on DOMA, including following to join benefits for family-sponsored and employment-sponsored immigrants, as well as for foreign nationals who have been granted asylum or refugee status. In addition, an I-601 request for a waiver of inadmissibility, which is generally reserved only for foreign nationals with a qualifying LPR or USC relative, has now expanded its definition of qualifying relatives to include a same-sex Lawful Permanent Resident or U.S. citizen spouse.

Since USCIS started adjudicating Immigrant Petitions for Fiancé/es and Spouses, there have been no reported issues with adjudication of such petitions for same-sex couples. USCIS has accepted the same forms and the same type of supporting evidence for same-sex couples.

The format of the marriage-based adjustment interview at the end of the process has been conducted in the same manner as it is conducted for opposite-sex couples.

Dependent nonimmigrant status available to same-sex spouses of principal status holder

Immigration benefits available post- DOMA are not limited to green card cases. Same-sex spouses may be eligible to apply for dependent visas (or dependent status, for individuals who are already in the United States in some other valid status), such as H-4, L-2, and F-2. As with opposite-sex couples, gay and lesbian couples must demonstrate that they meet the standard requirements for the requested visa or status, including evidence of the validity of the marriage where it took place.

There have been no reported issues with adjudication of applications for Dependent Nonimmigrant Status, either through USCIS or any of the U.S. Consulates.

LPRs eligible to apply for naturalization after three years of marital union

LPRs who have held permanent resident status for a period of three years, and who have been living in “marital union” with a USC spouse for three years, may be eligible to apply for naturalization. The general requirement for most other naturalization applicants is a five year period of permanent residence. However, following the Windsor decision, the benefit of the three-year rule was extended to same-sex marriages, under the same provisions for opposite-sex marriages. It is expected that once the beneficiaries of the same-sex marriages become eligible to apply for naturalization under the three-year rule, cases should be processed as smoothly as they have been under the above scenarios. n

About the author:

Bilingual in English and Spanish, Partner Julianne Cassin Sharp practices in the Immigration and Litigation Groups, specializing in both employment-based Immigration and Nationality Law. As an immigration attorney, Julianne specializes in a number of related areas including both family-based and business-based petitions and visas, counseling companies on worksite enforcement and corporate compliance (I-9 Audits, including issues of employment eligibility, use of E-verify, and determining risk of government sanctions and penalties), PERM Labor Certification applications, Adjustment of Status applications, Waivers, Consular Processing, and Naturalization.

She regularly represents clients before the U.S. Immigration Courts, as well as before the U.S. Department of Homeland Security, which includes U. S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP).

To read more from Jaffe’s INSIGHT which is a compilation of articles developed to help gay couples navigate their rights and responsibilities since the Windsor decision, visit:

The information contained herein is for education and information purposes only, not to give legal advice and not to promise any particular outcome in any particular set of circumstances. Please consult with an attorney before making a decision using only the information provided in this article.