Section 3 of the Defense of Marriage Act (DOMA) has been declared unconstitutional by the U.S. Supreme Court. Same sex couples who are legally married in their own states can now receive federal protections and benefits. In light of the decision, all federal agencies including the USCIS has come out with guidelines 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.
A U.S. citizen or permanent resident in a same sex marriage with a foreign national can petition for family based immigrant visa for their spouse by submitting Form I-130 along with the necessary documents. Further the eligibility of the petition will be determined as per the applicable immigration law and will not be denied as a result of the same sex marriage. In the event a waiver needs to be filed on the basis of marriage or status as a spouse, then it will be treated exactly in the same manner as opposite sex marriages.
Same sex engagement will allow the foreign national fiancé to travel to the U.S. on K visa by submitting Form I-129F.
Same sex marriages will have to show only three years of residency following the admission as a permanent resident for the purpose of filing naturalization application. Provided the couple was living in “marital union” during that time.
Reopening of petitions denied because of DOMA
USCIS will reopen those petitions or applications and associated applications that were denied solely because of DOMA section 3 either on its own motion or if the concerned person can inform them by giving necessary details about the case. Once the I-130 petition is reopened, it will be considered anew—without regard to DOMA section 3—based upon the information previously submitted and any new information provided. Additionally, if the work authorization was denied or revoked based upon the denial of the Form I-485, the denial or revocation will be concurrently reconsidered, and a new Employment Authorization Document issued, to the extent necessary. If a decision cannot be rendered immediately on a reopened adjustment of status application, USCIS will either (1) immediately process any pending or denied application for employment authorization or (2) reopen and approve any previously revoked application for employment authorization. If USCIS has already obtained the applicant’s biometric information at an Application Support Center (ASC), a new Employment Authorization Document (EAD) will be produced and delivered without any further action by the applicant. In cases where USCIS has not yet obtained the required biometric information, the applicant will be scheduled for an ASC appointment. No fee is required to request USCIS to consider reopening of the petition or application pursuant to this procedure. In the alternative, a new petition or application may be filed along with applicable fees.
We, at the Law Offices of Aditya Surti, LLC can help you with the necessary filings or reopening of your case.