descarga-200x130On June 25, 2013, the United States Supreme Court found key sections of the Defense Of Marriage Act (DOMA) to be unconstitutional. Soon after the decision was announced, the Obama administration ordered federal agencies and departments to modify their policies in order to ensure that same-sex couples who obtained valid marriage certificates would be treated equally under federal law.

On July 1, 2013, Secretary of Homeland Security Janet Napolitano issued a statement declaring that “Immigration visa petitions filed on behalf of a same-sex spouse [will be treated] in the same manner as those filed on behalf of an opposite-sex spouse.

There are some important changes with regards to immigration policy that married same-sex couples should be aware of:

  • A U.S. citizen or legal resident can now, for the first time, sponsor his or her same-sex spouse for a green card if he or she can prove that the couple entered into a bona fide marriage.

  • I-601(A) Provisional Waiver: This new measure allows foreign nationals who entered the country “without inspection” (unlawfully) to apply for residency while remaining in the U.S., have the waivers approved and then, as a formality, return to the U.S. Embassy in their country of origin to have their passports stamped. They may then immediately return to the U.S. possessing legal residency. This waiver applies equally to married same-sex couples who are petitioning for residency based on the legal status of either spouse.

  • The waiver is a faster and more efficient method compared to those implemented in the past. Before the I-601(A) visa, candidates for residency who entered the U.S. without inspection had to go back to his or her country of origin before applying for a visa based on marriage. This process separated families for long periods of time with no guarantee of approval, and denials often meant that relationships were irrevocably broken. The I-601A’s approval means that the foreign national can travel knowing that, barring any other grounds for admissibility, that they can leave the U.S. and come back as legal residents.

Requirements for the visa include:

  • Same-sex couples must have been married in a country or state where their marriage is legally recognized;

  • As with any opposite-sex marriage, a same-sex couple must be prepared to show that marriage was entered into with the intent to create a lifelong relationship, and not simply for the benefit of getting another person legal benefits. While it should not be the case, same-sex couples might be wise to expect extra scrutiny in this type of inquiry.

Anyone who is presently in a same-sex marriage or plans to do so in the near future should plan on applying as soon as possible. With the still-divisive issue of gay marriage in this country is not fully resolved, it is best to apply and get your documentation approved.

Steve Maggi

SMA Law Firm

(212) 402-6885

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