Same-sex marriages are legal in the State of California. However, these marriages were not recognized as valid for the immigration purposes by the United States Citizenship and Immigration Services (USCIS) before.
On June 26, 2013, the Supreme Court made a historical decision, which declared the Defense of Marriage Act (DOMA) unconstitutional. The ruling compels the United States Government, including USCIS, to treat all marriages equally, whether they are opposite- or same-sex marriages. This means that immigrant spouses in the same-sex couples can now become lawful permanent residents of the United States and obtain a Green Card because of their marriage to the U.S. citizens.
Subsequent to the Supreme Court decision, Secretary of Homeland Security Janet Napolitano made the following statement:
“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. 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.”
Thus, currently there are no differences in the immigration process for any couples who are legally married in the U.S. or abroad.
Below are the answers to some of the most frequently asked questions posted by the USCIS on this topic (copied from www.uscis.gov):
Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?
A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be denied as a result of the same-sex nature of your marriage.
Q2. I am a U.S. citizen who is engaged to be married to a foreign national of the same sex. Can I file a fiancé or fiancée petition for him or her?
A2. Yes. You may file a Form I-129F. As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for marriage.
Q3: My spouse and I were married in a U.S. state or a foreign country that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?
A3: Yes. 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, we will apply all relevant laws to determine the validity of a same-sex marriage.
To speak with an immigration attorney to discuss any same-sex marriage questions you may have, please call (310) 933-4455 or complete our online form.