U.S. Immigration and Same-Sex Couples: Summary of 2013 Supreme Court Windsor Decision’s Impact

Green cards, nonimmigrant visas, and other opportunities for same-sex spouses after the downfall of DOMA.

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Probably the biggest immigration-related impact of the 2013 Supreme Court’s Windsor decision, which overturned core portions of the federal Defense of Marriage Act (DOMA), was to allow U.S. citizens to petition for green cards (lawful permanent residence) for their same-sex spouses. (Under DOMA, the definition of marriage was limited to unions between a man and a woman.)

However, this wasn’t the only portion of U.S. immigration law to be affected. Under Windsor, legally married gay and lesbian couples become eligible for a number of immigration rights – the same ones that opposite-sex couples enjoyed for decades. Here is a summary list:

  • A U.S. citizen can apply for a fiancé visa to marry a same-sex partner in the United States, or in some cases use the marriage as a defense to deportation. The key, immediately after Windsor, was that same-sex marriage be recognized as legal in the state where the couple planned to hold the wedding. But a 2015 Supreme Court decision (Obergefell) made same-sex marriage legal in all 50 states. For more information, see “Can I get a K-1 visa for my same-sex fiance?
  • Nonimmigrant visa applicants can, in categories that allow accompaniment to the U.S. by spouses and children, bring a same-sex spouse. See, for example, “If I’m on an H-1B visa, can my same-sex spouse get a U.S. visa too?” Students, scholars, diplomats, treaty traders and investors, foreign media representatives, and many others are also able to utilize this opportunity. Also see “How Same-Sex Partners Can Accompany Temporary (Nonimmigrant) Visa Holders to the U.S.
  • Immigrants who aren’t the direct beneficiary of a green card application, but are derivatives planning to accompany an immigrant to the U.S., can bring their same-sex spouses in cases where opposite-sex spouses are allowed. For example, a worker petitioned for a green card by a U.S. employer could bring his or her same-sex spouse, as could the married child of a U.S. citizen petitioner. By the same token, however, a same-sex marriage can block visa eligibility in situations where it never could before, if the person is immigrating as an “unmarried” child; as described in, “If father gets a marriage-based green card, can son and gay spouse immigrate at the same time?
  • Winning applicants for the Diversity Visa Lottery can bring same-sex spouses to the U.S. to receive green cards as well. See “Won the Diversity Visa Lottery: Can I marry my same-sex partner and bring her to the U.S.?” for details.
  • Recipients of asylum can include same-sex spouses within their applications and thus receive asylum at the same time (if it’s approved) or can, after receiving an asylum grant, petition to have a same-sex spouse join them in the United States. For more information on this latter procedures, see “Filling Out Form I-730, Refugee/Asylee Relative Petition.”

Have we forgotten anything? It’s possible! The complexity of U.S. immigration law is the stuff of legend. (Not the good kind.) For a full analysis of your personal situation and immigration options, consult an experienced immigration attorney.

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