On June 26, 2015 in the landmark decision Obergefell v. Hodges, the United
States Supreme Court declared that the United States Constitution guarantees
the right to marriage to same-sex couples. As with any issue decided by
the Supreme Court, the consequences of the decision affect a vast number
of Americans. The Supreme Court's decision on gay marriage also affects
many outside the United States, particularly in the field of immigration.
Obergefell follows the Court's decision handed down in United States
v. Windsor that invalidated Section 3 of the Defense of Marriage Act,
which eliminated the distinctions between same-sex and opposite-sex legally
married couples at federal level. These decisions on same-sex marriage
fundamentally alter the way immigration policy is administered, which
in turn makes many more people eligible for immigration benefits.
United States Citizenship and Immigration Services now reviews all visa
petitions filed on behalf of same-sex spouses in the same manner as those
filed on behalf of an opposite-sex spouse. For example, a United States
citizen or lawful permanent resident in a same-sex marriage to a foreign
national may sponsor his or her spouse for a family based immigrant visa
and not be denied because of their sexual affiliation. This also means
that a same-sex marriage qualifies as a "marriage" for an alien
who seeks to qualify as a same-sex spouse accompanying to join an employment
based immigrant will not be denied based on sexual affiliation. In these
cases, the United States Citizenship and Immigration Services treats same-sex
marriages exactly the same as opposite-sex marriages. There are many options
to same-sex couples even if the individual entered the United States many
years ago and overstayed a valid visa, or if they entered as a child with
their family and remained here, or if someone applied for them for an
I-130 or I-140 petition application prior to April 30, 2001.
These are just some examples of the ramifications that the rulings on marriage
equality have on immigration policy. If you or someone you know would
like to apply for immigration benefits as a same-sex couple, please contact
our office at
(562) 464-6934 to speak to our experienced attorneys.