The US Supreme Court’s decision to overturn DOMA (Defense of Marriage Act) brought a monumental change to the treatment of same sex couples under US immigration laws. Many throughout the world applaud such transition in the immigration laws, which becomes effective immediately.
Same sex spouse visas are being processed immediately at consulates abroad and at local USCIS offices were properly filed. In fact, some same sex spouse visas that have been pending on the final results of this change has already been approved. Consulates abroad have been training their staff to process cases with the same criteria as opposite sex marriage.
The shift in the law simply means that when same sex spouses apply for a green card or immigrant visa, the State Department will adjudicate that visa application in the same manner as an opposite sex spouse.
If you are a spouse of a United States citizen, and all other requirements are met, your visa application for a green card will be treated equally under the law. The same applies to spouses of green card holders and eligible derivatives. By no means does this change circumvents existing US immigration laws, in fact, the standard of proving a bona fide relationship still exists, but now it allows for same sex spouses to apply for the same immigration benefits.
So long as the marriage has been performed in a jurisdiction that recognizes that it is legal then the marriage is valid under US immigration laws.
For example, May and Bee are in a relationship and have lived together for the last six months. They are now legally married in California and Bee is currently on a valid student visa while she studies for her master’s degree in mathematics. Prior to the change in the US immigration laws, Bee was not eligible for a green card visa through her US citizen spouse, May. Bee is a Thai national. Thailand does not recognize same sex marriage and only recently has California reinstated the same sex marriage. Bee and May married when the law was reinstated in California.
Bee may now apply for a green card visa and be treated as equally as any other opposite sex couple. Since California now recognizes same sex marriage, May and Bee may now begin the visa process to adjust Bee’s status from student to immediate relative spouse, which upon arrival would grant her a green card to reside in America. Additionally, any eligible dependent of the couple may benefit as a derivative or on a separate immediate relative petition.
There are many cases such as May and Bee that expand across the globe. In cases where the couple’s children are involved, they too are eligible under the same law.
To find out whether you are eligible, it is imperative that you speak to an experienced US immigration attorney to form an immigration plan specific to your needs. Not all cases are alike and what may work for one couple may not work for another and only an experienced immigration attorney may advise you on the best immigration option for you. As this is a new change in the US immigration laws, there are many visa agencies claiming to find a quick and magical solution to naive applicants. While everyone may apply under this new rule, it does not mean that every is eligible in the Immigration and Nationality Act. The general inadmissibility issues still apply in this new change.