Citizenship and Immigration Service issues more FAQ's on same-sex marriage. According to CIS, a U.S. citizen or lawful permanent resident may now file a petition on behalf of their same-sex spouse. There is no need to wait for CIS to publish regulations following the Supreme Court decision in Windsor. Your eligibility to file the Form I-130 and your spouse's admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of the marriage. Similarly, a U.S. citizen may file a Form I-129F on behalf of their same-sex fiancé or fiancée in order to allow a fiancé to enter the United States for marriage. Contact Miley & Brown, P.C. at www.mileybrown.com for additional information or assistance.
Further, these FAQ's make it clear that, if you were married in a state that recognizes same-sex marriage but reside in a state that does not, the U.S. citizen or permanent resident spouse may still file the petition. Generally, U.S. CIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. In essence, same-sex marriages will be treated the same as opposite-sex marriages for almost all immigration benefits, including waivers of inadmissibility where the applicant must show some form of hardship to their U.S. citizen or lawful permanent resident spouse.
In cases where the immigration laws condition the benefit on the existence of a "marriage" or on one's status as a "spouse," same-sex marriages will also qualify as marriages for purposes of these benefits. Examples include (but are not limited to) an alien who seeks to qualify as a spouse accompanying or following to join a family-sponsored immigrant, an employment-based immigrant, certain subcategories of nonimmigrants, or an alien who has been granted refugee status or asylum. In all of these cases, a same-sex marriage will be treated exactly the same as an opposite-sex marriage.
Things are a bit more complicated for immigration benefits other than for immediate relatives, family-preference immigrants, and fiancés or fiancées. There are some situations in which either the individual's own marriage, or that of his or her parents, can affect whether the individual will qualify as a "child," a "son or daughter," a "parent," or a "brother or sister" of a U.S. citizen or of a lawful permanent resident. In these cases, same-sex marriages will be treated exactly the same as opposite-sex marriages.
Finally, a same-sex marriage can, in some instances, reduce the five year residency requirement for naturalization to three years.