Immigration and Same-Sex Marriage:  One Year After Implementation

June 27, 2014


Last June 26, 2013, the U.S. Supreme Court issued the historic court ruling of United States v. Windsor, which made it clear that same-sex spouses must be entitled to all of the same federal rights, benefits, and protections afforded to opposite-sex spouses, including immigration benefits.  In a recent Memorandum to the President by the U.S. Attorney General, the court decision is heralded as “…being consistent with our values as a nation and a triumph for equal protection under the law for all Americans.”  

Since the court decision, all of the federal branches of government have been valiantly striving to implement the law so that individuals are no longer denied their fundamental rights.  Amongst these agencies are those that administer the immigration laws, including the U.S. Citizenship and Immigration Service (USCIS), U.S. Customs and Border Patrol (USCBP), and U.S. Embassies.  These agencies are to be commended for the swift implementation of the court decision as they immediately took steps to provide same-sex spouses with the opportunities available to opposite-sex spouses.  The USCIS quickly announced after the ruling that it would treat opposite-sex marriages exactly the same as same-sex marriages.  The USCIS also very briskly made it clear that it would recognize a same-sex marriage as being valid so long as it is valid where the marriage took place, regardless of where the individuals reside.  This pronouncement was crucial since there continue to be many states where same-sex marriages are still not recognized. 

The U.S. Embassies and USCBP quickly followed with confirmation that they too would extend all of the same rights and privileges to those applying for visas overseas and seeking entry into the U.S. 

In this past year, the various agencies overseeing the U.S. immigration laws have now fully implemented the court decision, including crucial training of its officers to ensure that the policies are applied and respected rather than just empty hopeful policies.  Family-based sponsorships, including fiancée petitions, are fully available to same-sex couples.  Derivative status on all visa categories are fully available to same-sex spouses, such as family-based petitions, employment-based petitions, asylum, and refugee status.  Individuals who obtain permanent residence through a same-sex spouse are eligible for naturalization based on the shorter residence period of 3 years, rather than 5 years.  As well, applications for waivers of inadmissibility or the prevention of removal that designates a spouse as a qualifying relative is available based on a same-sex marriage. 

The one instance in which the immigration policies have yet to be updated pertain to Canadians, who are allowed to enter the U.S. without formally obtaining a visa.  However, even in this situation, the USCBP is allowing same-sex spouses to enter either as a derivative beneficiary or as a B-1/B-2 tourist, with the formal rule implementing the law for visa exempt Canadians already in the process.

Since the historic court ruling one year ago, our nation has seen one state after another legalize same-sex marriages.  At the time of the court decision, there were only 13 states and Washington D.C. that allowed same-sex marriages.  There are now the following 19 states:  California; Connecticut; Delaware; Hawaii; Illinois; Iowa; Maine; Maryland; Massachusetts; Minnesota; New Hampshire; New Jersey; New Mexico; New York; Oregon; Pennsylvania; Rhode Island; Vermont; and Washington.  There are now also 17 countries that have legalized same-sex marriages:  Argentina; Belgium; Brazil; Canada; Denmark; France; Iceland; Luxembourg; Netherlands; New Zealand; Norway; Portugal; Spain; South Africa; Sweden; United Kingdom; and Uruguay.  As well, certain regions of Mexico allow same-sex marriages and the countries of Australia and Colombia are moving forward with legislation to allow it. 

While much work is still needed to end the discrimination that continues to plague the LGBT community, the downfall of the Defense of Marriage Act last year has allowed significant progress.  No longer are families prevented from joining and being together as one in this great nation that we treasure as being the land of the free and home of the brave.

For further information, please schedule an appointment with an attorney at Aquino & Loew, Immigration Law Specialists.