This is not my own post, but it was well researched and written by American Immigration Council. The article sums up the essence of our immigration system here in the United States. Since there has been much debate about immigration, in advance of the election, I believe the article provides good information that sets the stage for any intelligent discussion on the issue.
On July 17, 2013, in the Matter of Oleg B. Zeleniak, the Board of Immigration Appeals (BIA) issued a decision confirming that I-130 petitions on behalf of same-sex spouses (legally married in states recognizing same-sex marriages) are valid. The decision confirms that DOMA is no longer an impediment to legally married same-sex couples seeking immigration benefits.
If you are legally married to your same-sex spouse and would like to seek immigration benefits on his/her behalf, please contact our office today.
Read the decision here.
On July 1, 2013, Secretary of Homeland Security Janet Napolitano stated: “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.” The following is from the USCIS’s website’s FAQs:
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 automatically denied as a result of the same-sex nature of your marriage.
Q2: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?
A2: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.
The DOMA Project is a campaign to stop the deportations, separations, and exile of gay and lesbian binational couples caused by the Defense of Marriage Act. Since it was founded in 2010 by attorneys, the DOMA Project has filed almost 100 green card petitions for same-sex couples affected by DOMA. On February 13, 2013, the DOMA Project filed a green card application on behalf of Julian Marsh for his Bulgarian husband, Traian Popov (married in 2011 in New York City). Just two days after the historic Supreme Court ruling striking down the Defense of Marriage Act Section 3, Julian and Traian received the good news that the petition was approved. For the full details, visit the DOMA Project.
For more information regarding the Supreme Court ruling striking down DOMA, see my previous post.
Welcome to my blog. This is not only my first blog on my new website, but my first official blog ever! And, I am not without subject matters to blog about, since this week is a historic week in immigration law.
For starters, hip hip hurray for the United States Supreme Court’s decision in United States v. Windsor, which held on June 26, 2013, that the Defense of Marriage Act (DOMA) is unconstitutional. Equal protection was the winning argument, as opposed to states’ rights (to decide on the definition of marriage). Secretary Janet Napolitano commented:
I applaud today’s Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits. I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.
While the underlying matter was not an immigration case, the Supreme Court decision has a significant impact on immigration. For one, those in same sex marriages or relationships may petition for immigration benefits such as marriage or fiance visas for each other, whereas, pre-Windsor, DOMA had prohibited such petitions. However, even with DOMA stricken down, same sex couples still face hurdles in proving the bona fide nature of the relationship, traditionally by friends/family affidavits and photographs. Just because the Feds now recognize same sex marriages, it does not mean the same sex couples’ families, friends, employers, etc. will. If you want to petition for your same sex partner, I can advise you on how you can meet the requirements for such visas even if you face such difficulties. Contact me for an appointment.
For the full opinion, see http://www.supremecourt.gov/opinions/12pdf/12-307_g2bh.pdf