Updated: December 11, 2018
Visa applications from spouses in same-sex marriages are now decided on the same basis as those from spouses in opposite-sex marriages. In United States v. Windsor, the Supreme Court overturned relevant provisions of the Defense of Marriage Act (‘DOMA’), paving the way for these changes.
This means that if a same-sex couple married in a US state or foreign country that recognizes same-sex marriages, the US citizen spouse may petition for the immigration of the non-US citizen spouse under the same conditions and under the same procedure as has long been applied to the marriage-based immigration of opposite-sex spouses.
US State of Residence Irrelevant for Immigration Purposes
Both the United States Citizenship and Immigration Services (the agency of the Department of Homeland Security that decides whether to grant the initial petition) and the US Department of State (which decides whether to approve the visa application itself) have indicated that the law of the place of the marriage, not the law of the place of the couple’s current or future residence, determines the legal validity of the marriage for immigration law purposes. If the marriage was valid where celebrated, it will be valid for US immigration purposes even if the couple now lives in or later moves to a jurisdiction that does not recognize same-sex marriage.
Civil Unions and Domestic Partnerships Not Treated As Marriages
The effects of the Windsor decision and resulting changes to immigration law apply only to marriages, and do not include civil partnerships, domestic partnerships, or civil unions. This means that partners who have entered into a civil union in the UK, for example, but who are not married, are not eligible for marriage-based immigration to the US. Secretary of State John Kerry made this clear in an address at the US Embassy in London on August 2, 2013.
Now, as long as a marriage has been performed in a jurisdiction that recognizes it so that it is legal, then that marriage is valid under U.S. immigration laws, and every married couple will be treated exactly the same, and that is what we believe is appropriate. Starting next year, that will include same-sex couples from England and Wales, which just this year passed laws permitting same-sex marriage that will take effect in 2014.
Similarly, same-sex couples who are civil partners under US state law, but not married, also will not benefit from the immigration law changes resulting from Windsor.
For FAQ’s from the State Department and USCIS, see U.S. Visas for Same-Sex Spouses (State Department) and Same-Sex Marriages (USCIS). For related information, please see our website articles I Married an Alien, Get Us Out of Here: Immigrant Visas for Spouses of US Citizens Living in the United Kingdom; Before You Say ‘I Do’: Options for British-American Couples; A Beginner’s Guide to the Affidavit of Support; I-864 Affidavits of Support: The Problem of ‘Domicile’; and Unknown Unknowns: ‘Do I Really Need a Lawyer to Get My Spouse a Green Card?’.
We hope that this article has been a helpful introduction to the changes to immigration law that now allow US citizens to sponsor their same-sex spouses for immigration to the United States. However, it should not be relied upon as a substitute for legal advice tailored to the specifics of your situation. If you believe that legal advice would be helpful you should consult a qualified US immigration attorney.