Immigration Rules for Married Same-sex Couples

Waiver2.In 2013, the US Supreme Court decided in United States v. Windsor case that changed a legal principal and brought forward a progressive and a new legal concept: it was ruled that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional.  The Defense of Marriage Act also known as DOMA was drafted and enacted during Bill Clinton’s presidency.

Section 3 of the act did not recognize the same-sex marriage and these couples could not receive the same Federal benefits as opposite-sex couples, although they were lawfully married in the states that did recognize same-sex marriage.  Thereby, with the unconstitutionality decision ruled by the highest court of the United States, all marriages whether between same-sex couples or opposite-sex couples were recognized equally before the Federal Law. However, it must be overemphasized that the states are free whether or not to recognize same-sex marriages.

Immigration Law regulates who will obtain U.S. citizenship and it determines whom the Federal Government will admit, for how long and under which terms. Essentially, it states the procedures regarding deportation and removal of foreigners or foreigners that entered the country with visas but overstayed their visa. The Constitution of the United States gives the exclusive power on immigration to Congress and therefore, the Immigration Law is regulated under the Federal Law.  With the decision of the highest court of the country, married same-sex American citizens or Green Card holders can apply for immigrant visas, permanent residency status (Green Card) for their spouse. Furthermore, homesexuals marrying same-sex individuals can benefit the same rights as the individuals marrying opposite-sex, such as sponsoring immigrant visa for their partner’s child, protection from deportation or victims of domestic violence.

Same-sex couples, as long as married in the states that legally recognize same-sex marriage, can benefit all the same immigration benefits as opposite-sex couples; living in the states that legally recognize same-sex marriage is not required. In other words, considering within the framework of immigration law, although they have to marry in a state that recognizes same-sex marriage, homosexuals can benefit the rights given to all married couples by the federal law the Immigration and Nationality Act, and their marriage is recognized by the Federal government, regardless of what state they live in, and wherever they move to within the United States.

From the viewpoint of the rights of engaged same-sex couples before immigration law, it can be clearly seen that the K-1 visa was enacted in order to prevent the fiancé(e)s from being separated for a long period of time and support and encourage family unity. After the U.S. Supreme Court struck-down the section 3 of the Defense of Marriage Act and found it to be unconstitutional, engaged same-sex couples’ children that are under the age of 21 are permitted to legally enter the United States. These children can benefit from the K-1 visa that enables engaged couples to marry within 90 days from their entry date into the U.S. In addition, the homosexual fiancé(e) can immediately apply for a work permit and after the marriage, the non-U.S. partner can apply for a permanent residence status (Green Card).

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