Frequently Asked Questions about Gay Marriage Based Immigration

1. Can a U.S. citizen who lives in a state that does not recognize same-sex marriage file a Form I-130 or a Form I-129F, Petition for Alien Fiancé(e)?

Yes. Secretary of Homeland Security Napolitano announced stated that the law of the place where the marriage has taken or will take place is key, not the law of the state of residence:

Yes, you can file the petition.  In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes.

The State Department’s FAQ agrees. And the Board of Immigration Appeals has agreed in Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA 2013). In that case, the couple married in Vermont and resided in New Jersey, a state that does not offer full marriage equality.

President Obama has even weighed in on this question:

It’s my personal belief — but I’m speaking now as a President as opposed to as a lawyer — that if you’ve been married in Massachusetts and you move someplace else, you’re still married, and that under federal law you should be able to obtain the benefits of any lawfully married couple…. But I’m speaking as a President, not a lawyer.

It’s worth noting that the USCIS FAQ originally mentioned an exception to the general rule:

That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.

But the FAQ has been updated to delete reference to the exception:

As a general matter, the law of the place where the marriage was celebrated
determines whether the marriage is legally valid for immigration purposes.  Just
as USCIS applies all relevant laws to determine the validity of an opposite-sex
marriage, we will apply all relevant laws to determine the validity of a
same-sex marriage..

The “exception” that USCIS had referred to are for instances in which the state of residence has strong public policy reasons for not recognizing a marriage entered into legally in another jurisdiction. For example, where residents of State A are close relatives whose marriage would be considered incestuous and illegal go to State B to marry but then return to their State A residence, USCIS may not recognize the marriage as legal. So LGBT advocates feared that the “exception” mentioned in the USCIS FAQ related to states like Wisconsin, which has a constitutional amendment barring same-sex marriages and a statute declaring void for purposes of state law marriages by persons residing in Wisconsin who wed out of state but intend to continue to reside in-state. In any case, it appears the “exception” to recognizing out-of-state same-sex marriages appears to have been deleted.

2. Can a U.S. citizen living abroad file a Form I-130 on behalf of same-sex spouse?


3. My Form I-130, or other petition or application, was previously denied solely because of DOMA.  What should I do?

According to the USCIS announcement, the agency will  reopen those petitions or applications that were denied after February 23, 2011, solely because of DOMA section 3. USCIS says it’s trying to identify those cases and notify the parties if additional evidence is required. USCIS has provided an email address to bring such cases to its attention and says that you must do so by March 31, 2014. No fee is required to reopen such cases.

4. When might it be preferable to file a Form I-129F, Petition for Alien Fiancé(e), to qualify for a K-1 visa?

If the foreign national fiancé(e) resides in a country, like China, that does not allow same-sex marriage and he/she is unable to get married in another country, the K-1 would be appropriate.  That is a huge benefit to same-sex couples because most of their fiancé(e)s probably do reside in countries without marriage rights.

The application requires the couple to demonstrate that they have a “bona fide” relationship. After the visa is granted, the couple is required to marry within 90 days of the foreign partner’s entry into the U.S. Once married, the couple can file the marriage-based Form I-485, Application to Adjust Status, from within the United States.

5. What about visas for the foreign spouse or fiancé(e)’s children?

Generally, when a U.S. citizen files a Form I-130 or Form I-129F for a spouse or fiancé(e), the foreign spouse’s children can qualify to immigrate as the citizen’s “stepchildren.” (If you and your spouse planned to have a child together, you probably consider the child to be your “child”–not your “stepchild”–but the immigration law classifies the child as your “stepchild” if you are not a biological parent.)

For an I-130 of behalf of a citizen’s stepchild, the couple must have married before the child turned 18, and the child must be under 21 and unmarried at the time the I-130 is filed in order to get a green card at the same time as the parent’s marriage-based green card.

For the I-129F, the citizen’s stepchild may obtain a K-2 visa so long as he or she is under age 21 at the time of issuance.

6. Can a foreign national coming to the U.S. in nonimmigrant status (e.g., F-1 student, H-1B specialized knowledge worker, J-1 exchange visitor, L-1 intracompany transferee, O-1 extraordinary ability) obtain a dependent visa (e.g., F-2, H-4, J-2, L-2, O-3) for a same-sex spouse?


7. What other immigration benefits may a same-sex spouse qualify for?

Immigration equality will cover a range of benefits. For example, eligibility for provisional waivers for persons who entered the United States without inspection; eligibility for permanent residence for battered spouses under the Violence Against Women Act (VAWA), which despite its title has never been limited to women; and even naturalization, for example as an adopted child in a same-sex marriage, to qualify for the reduced three-year residence requirement when living with a U.S. citizen spouse, or to qualify for “expeditious naturalization” under section 319(b) as the spouse of a U.S. citizen employed abroad.

8. What evidence should be filed to prove that a same-sex marriage is valid, meaning entered into for purposes of sharing ones’ lives together, rather than merely for immigration purposes?

The evidence will be similar to what heterosexual spouses submit. 

The potential signs of a fraudulent marriage that the government looks for will be similar to signs that a heterosexual relationship is a sham:

Large disparity of age, especially if the woman is older than the man.

Inability of petitioner and beneficiary to speak each other’s language.
Vast difference in cultural and ethnic background.
Family and/or friends unaware of the marriage.
Marriage arranged by a third party.
Marriage contracted immediately following the beneficiary’s apprehension or receipt of
notification to depart the United States.
Discrepancies in statements on questions for which a husband and wife should have
common knowledge.\
No cohabitation, other than educational or professional reasons, especially if the parties
don’t visit each other often.
Beneficiary is a friend of the family.
Petitioner has filed previous immigration petitions, including but not limited to petitions
for prior foreign spouses.
Marriage not recorded in personnel records for one or both spouses.
In addition, some same-sex petitioners and beneficiaries may have not disclosed their sexual orientation to their friends, family, landlord, financial institutions, employer, etc. meaning that a bona fide relationship might be hard to prove. Many U.S. states and localities have no anti-discrimination laws covering sexual orientation. For others, it might actually not be safe to openly admit they are gay or lesbian, much less identify a spouse.

Note that if the marriage was celebrated before the Windsor decision it would be difficult for the government to argue it was entered into solely for purposes of immigration: at the time of marriage, there was no immigration benefit eligibility under U.S. law.

Also note that if either or both spouses previously filed IRS income tax returns as “single” because the marriage wasn’t recognized under DOMA, you may want to speak with a tax advisor about filing amended returns to show your status as “married filing jointly” or “married filing separately.

9. Is it possible to request that the immigration case be expedited?

In appropriate cases, it may be possible to request that an immigration case on behalf of a spouse or fiancé be expedited on the basis that the delay in filing was due to the Government’s unconstitutional refusal to recognize the validity of a same-sex relationship, causing hardship to the couple.

10. Does a civil union or domestic partnership count?

The answer is not yet clear. The Department of State FAQ says not “at this time.” USCIS has not issued guidance.

11. I married in a state where same-sex unions are allowed. However, I have moved to a state that does not recognize same-sex marriages. Can we still apply for immigration benefits?

Yes, as long as you are legally married in a state that recognizes same-sex marriage. The new Supreme Court ruling has allowed the federal government to treat all marriages equally.  Since immigration is governed by federal law, immigration benefits will now be given to same-sex couples, no matter where you reside.

12. I married my partner abroad in a country that recognizes same-sex marriage.  Will the United States recognize that marriage for immigration purposes?

Yes, as long as you are legally married in a country that recognizes same-sex marriage. The new Supreme Court ruling has allowed the federal government to treat all marriages equally.  Since immigration is governed by federal law, immigration benefits will now be given to same-sex couples, no matter where you reside.

13. How do I know if I qualify for immigration benefits?

Immigration law still remains as one of the most complex areas of law. Determining your eligibility depends on many factors, such as your manner of entry into the United States, any past immigration history, past criminal history, and the length of your stay in the U.S.  The Law Offices of Darryl L. Wynn has created a state-of the art eligibility test in order to determine all immigration benefits you may be eligible for. To find out your eligibility, please give us a call at 212-402-6886.

14. Are you able to help clients nationwide?

Absolutely. we specializes in serving clients nationwide and worldwide.  We have state-of-the-art technology allowing us to effectively communicate and keep our clients informed of every step taken with their case. We also regularly Skype with our clients who may want a face-to-face meeting who otherwise do not have the time to visit one of our offices.  At Law Offices of Darryl L. Wynn, we are able to do things differently – which our clients appreciate.

15. Is same-sex marriage legal in the state of California?

Yes. Gay and lesbian couples can now get married in California. On June 28, the Ninth Circuit Court of Appeals lifted its stay of the historic District Court decision that ruled Proposition 8 unconstitutional.

16. I married in California before Proposition 8 passed. Is my marriage still recognized?

Yes.  Marriages that occurred before Proposition 8 are valid. California first began issuing marriage licenses to same-sex couples on June 16, 2008.  The issuance of those licenses was halted on November 5, 2008 due to the passage of Proposition 8, a state constitutional amendment barring same-sex marriages.  On June 27, 2013, the granting of same-sex marriages recommenced after the United States Supreme Court decision in Hollingsworth v. Perry declaring Proposition 8 as unconstitutional.

17. Will immigration benefits be given to those who hold civil unions or domestic partnerships?

No. Those who hold civil unions or domestic partnerships must legally get married in a state that allows same-sex marriage. Only then will the federal government recognize the marriage.

18. Which states recognize same-sex marriages?

California, Connecticut, Delaware, District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota (starting August 1, 2013), New Hampshire, New York, Rhode Island (starting August 1, 2013), Vermont, Washington State.

19. Which countries allow same-sex marriages?

Argentina, Belgium, Canada, Denmark, France, Iceland, Netherlands, New Zealand (starting August 19, 2013), Norway, Portugal, South Africa, Spain, Sweden, Uruguay (starting August 1, 2013), as well as certain jurisdictions in Brazil and Mexico.

20. Do I need to be a resident of a state to get married in that State?


21. I have a civil union from another state. Can I still get married in a state that recognizes same-sex marriage?

Yes, as long as you are marrying the same person. If you are marrying a different person, you will need proof that your civil union ended (i.e. death, dissolution, divorce, or nullity).

22. I am in a State Registered Domestic Partnership. Can I still get married in a state that recognizes same-sex marriage?

Yes, as long as you are marrying the same person with whom you are registered as a Domestic Partner. If you are marrying a different person, you will need proof that your domestic partnership ended (i.e. death, dissolution, divorce, or nullity).

23. What documents do I need to get married?

In most states, both parties must appear in person and bring valid picture identification to the County Clerk’s Office to apply for a marriage license. Valid picture identification is one that contains a photograph, date of birth, and an issue and expiration date. Some states and counties may also require a copy of your birth certificate. If you have previously been married you will need to know the date your last marriage ended and how it ended. You may also be required to present a final judgment of the dissolution.

CALL 212-402-6886 or 718-986-2151 NOW!
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