Yes. In 2013, the United States Supreme Court struck down Provision 3 of the Defense of Marriage Act (DOMA), a provision that prohibited the federal government from recognizing same-sex marriages. Immediately following this, President Barack Obama directed departments of the federal government to comply with this new ruling.
Among those federal departments was the U.S. Citizenship and Immigration Services (USCIS). The USCIS therefore began reviewing same-sex spouse green card applications in the same manner in which they reviewed green card applications for heterosexual couples.
It was not until 2015 that the Supreme Court ruled that, under the Equal Protection clause of the United States Constitution, same-sex marriage must be recognized throughout the U.S. However, for purposes of federal benefits such as immigration, the 2013 ruling was the key.
What was DOMA?
The Defense of Marriage Act (DOMA), a federal law in the U.S., went into effect in 1996. Its purpose was to codify marriage as being between a man and a woman. Although this did not prevent states from passing their own laws regarding marriage, it did define marriage under federal law, and, accordingly, prevent same-sex couples from accessing any benefits available (including those related to immigration) under federal law.
Section 3, in particular, was the section of the DOMA which prohibited same-sex couples from being recognized by the federal government, and from accessing benefits such as federal government insurance benefits and survivor’s rights to social security benefits, as well as immigration benefits.
As mentioned above, this provision of DOMA was done away with by a U.S. Supreme Court ruling, and same-sex spouses are now entitled to the types of benefits mentioned above. They must be married, as civil unions no longer count for immigration benefits.
Can Same-Sex Spouses Obtain Green Cards Now?
Now that the federal government recognizes same-sex marriages, and accords benefits to the partners of the marriage, those couples are treated by the USCIS just as heterosexual marriage partners would be. It should be noted that, in order to be recognized as legal for purposes of recognition in the U.S., the marriage must have taken place in a country where same-sex marriage is legal. If it did not, a fiancé visa might be a better option.
A U.S. citizen or lawful permanent resident may now sponsor their same-sex spouse (once they are married in a country where it is legal!) by filing a petition with the USCIS to sponsor their spouse for a family-based immigrant visa. Petitions will be decided upon according to U.S. immigration law, with the same-sex nature of the marriage no longer being a factor. All other immigration requirements must be met.
Can My Same-Sex Fiancé Also Apply for a Green Card?
Yes, a different form is used to apply for a fiancé, as opposed to a spouse, but you can apply for your same-sex fiancé to come to the United States to get married within 90 days. Once again, all other immigration requirements must be met. For instance, if your fiancé entered the U.S. illegally and has remained here illegally, this will prevent them from staying in the U.S., even if you marry.
Will Our Marriage be Recognized Throughout the U.S.?
Yes. As mentioned above, the Supreme Court of the United States ruled in 2015 that laws against same-sex marriage violated the Equal Protection Clause of the U.S. Constitution. Since 2015, same-sex marriage has been recognized by each state in the U.S. Therefore, your marriage will be recognized and legal throughout the U.S., as long as your marriage did not take place somewhere outside the U.S. where same-sex marriage is not legal.
Can a Same-Sex U.S. Citizen or Permanent Resident File for Their Children?
Just like heterosexual married partners, same-sex married partners may also file petitions for green cards for their children. As with filing for a spouse, a U.S. citizens or lawful permanent resident (green card holder) may file a petition for their children to also receive green cards.
The children you sponsor must be unmarried. You may petition for adult children or younger children, but you should note that those under 21 are referred to as “children,” while your adult children over the age of 21 will be referred to as sons and daughters.
Your genetic children born both in and out of wedlock count as children for these purposes. This includes children born with reproductive assistance. You may petition for your stepchild if you married the parent before the child turned 18. You may also petition for your adopted child, as long as, in most cases, you adopted they before they turned 16 years of age.
Do I Need an Attorney to Apply for a Green Card Based on a Same-Sex Marriage?
Immigration law is complex, and when it comes to matters of the immigration status of your spouse and children, the stakes are high. For this reason, it is a good idea to work with an immigration attorney. They will be able to walk you through the process and let you know what to expect as you go through the long, and often difficult, process.