U.S. citizens and lawful permanent residents can begin to file cases on behalf of their foreign same-sex spouses without delay. Same-sex cases are to be reviewed in the same manner as those filed on behalf of opposite-sex spouses.
U.S. Citizenship and Immigration Services will immediately begin to review family-based green card cases filed on behalf of same-sex spouses, the Department of Homeland Security has confirmed. In the wake of the Supreme Court’s decision to strike down Section 3 of the Defense of Marriage Act(DOMA), U.S. citizens and lawful permanent residents can begin to file petitions for their same-sex spouses without delay.
USCIS will also reopen same-sex marriage cases denied since February 2011, according to an announcement last week from USCIS Director Alejandro Mayorkas. Petitioners whose filings were denied before that time can move to have their cases reopened.
The agency is to review same-sex marriage cases in the same way that petitions filed on behalf of opposite-sex spouses are treated, though further agency guidance is expected. It has long been DHS policy to recognize marriages as long as they are valid at their place of inception, though DOMA and earlier decisions restricted that recognition to opposite-sex marriages. In the past, the agency has sometimes considered whether a marriage is recognized in the state where a couple resides, but this is very rare and limited to specific factual circumstances. Section 2 of DOMA – which was not affected by the Supreme Court’s decision – permits a U.S. state to decline to recognize same-sex marriages solemnized in other states.
Media reports indicate that USCIS has already approved at least one same-sex marriage petition for a couple married in New York but residing in Florida, where same-sex marriage is not recognized.