As some of you may already know, in 2013 the Supreme Court of the United States ruled that the Defense of Marriage Act (signed by Bill Clinton in 1996) was deemed unconstitutional. This decision means that the federal government cannot prevent legally married same-sex couples from receiving federal benefits that other legally married opposite-sex couples receive. What does this mean for immigrants exactly?
Because it is unconstitutional (illegal) for the government to deny benefits to same-sex couples, any immigration process or right that a heterosexual applicant has, so does a homosexual applicant. A gay or lesbian individual can sponsor their same-sex spouse as long as they were legally married in a state that recognizes same-sex marriages. The right for spouses to apply for immigration benefits does not depend on where they live or whether their home state recognizes same-sex marriages. Since immigration law is a part of the federal system, an applicant’s home state has no impact on their qualification of benefits or the approval of their petitions.
Several of my same-sex clients have had concerns about the success of their petitions and whether the review process would be different for them. The answer is NO! The Secretary of Homeland Security (who oversees USCIS and ICE) made a statement in July of 2013 that the President “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.”
The federal government (USCIS) is legally obligated to treat all applications exactly the same when it comes to qualification factors. Their job is to thoroughly review the filing to make sure that the applicants qualify for the benefit they are applying for. The same standards apply to any applicant and the same required information is needed for the filing.