Author: Helen Pihlstrom.
The U.S. Citizenship and Immigration Service has provided additional guidance on the implementation of the Supreme Court’s United States v. Windsor ruling, which invalidated part of the Defense of Marriage Act. In a Frequently Asked Questions, last updated on August 2, 2013, USCIS addresses in more detail how it will handle a number of immigration benefits sought by married same-sex couples.
Expounding on DHS Secretary Janet Napolitano’s July 1st directive, USCIS formally confirms that individuals may seek all applicable immigration benefits for same-sex spouses, including immigrant visa applications, fiancé/fiancée petitions, and other “benefits for which you believe you are eligible,” without waiting for further official guidance or forms. In addition, the USCIS will re-open and consider anew cases that were denied based on DOMA; affected applicants will not be required to pay new filing fees.
The FAQs also address a lingering question of those residing in U.S. states that do not recognize same-sex marriages. Consistent with current policy for marriage-based benefits, USCIS will consider the law of the place where the marriage was celebrated in determining whether the marriage is legally valid for immigration purposes. This also includes marriages performed in Canada and other marriage-equality countries.
Other benefits addressed in the FAQs include those for dependents of employment-based individuals, foreign nationals seeking to qualify as a spouse accompanying or following to join a family-sponsored immigrant, inadmissibility waivers, and dependents of those granted refugee status or asylum. In all of these cases, same-sex marriages will be treated in the same manner as opposite-sex marriages.
In addition, after Secretary of State John Kerry advised on August 2nd that U.S. consulates would begin processing visa applications on behalf of same-sex spouses, Immigration and Customs Enforcement’s Student and Exchange Visitor Program (SEVP) has provided guidance on the issuance of I-20 Forms for international students. According to the August 5th guidance, Designated School Officials at U.S. universities may issue I-20 Forms for same-sex dependent spouses of F-1 or M-1 visa-holder students. Consistent with existing SEVP policy, schools officials are to verify the validity of same-sex marriages to determine if the marriage is valid in the place of celebration.