Since the Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, same-sex marriage couples are entitled to federal benefits. This means that 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 new federal immigration benefits also confer the right to green card to the foreign spouse’s children, parents, and siblings as well as the siblings’ spouses and minor children in the United States.
Petitioning for your fiance or fiancee. You may file a Form I-129F, and as long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for marriage.
Example by USCIS:
Q:My spouse and I were married in a U.S. state or a foreign country that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?
A: Yes. As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Just as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage. The domicile state’s laws and policies on same-sex marriages will not bear on whether USCIS will recognize a marriage as valid.
Applying for Naturalization. Naturalization is available after a required residence period of three years, if during that three year period you have been living in “marital union” with a U.S. citizen “spouse” and your spouse has been a United States citizen.
Inadmissibility Waivers. In cases where the required family relationship depends on whether the individual or the individual’s parents meet the definition of “spouse,” same-sex marriages count for that purpose.
Relief from removal. In immigration court where a relief from removal depends on whether the individual or the individual’s parents meet the definition of “spouse,” same-sex marriages count for that purpose.
Derivative Visas. Same-sex spouses of gay, lesbian, bisexual, and transgender foreign nationals who received employment-based visas can now come along to the United States through derivative visa benefits:
- H-4 visa for a spouse who holds an H-1B Specialty Occupation visa
- L-2 visa for a spouse who holds an L-1 Intracompany Transferee visa
- E-2 visa for a spouse who holds an E-2 treaty trader or treaty investor visa
- R-1 visa to accompany the spouse of a religious visa holder
- Green-card eligibility for spouses of EB-5 investors
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