This month, Secretary of State John Kerry stated that effective immediately, when same-sex spouses apply for a visa, the Department of State (DOS) will consider that application in the same manner that it will consider the application of opposite-sex spouses based on the fact that the Supreme Court has found section 3 of the Defense of Marriage Act (DOMA) unconstitutional.
In addition to the US Citizenship and Immigration Services, U.S. embassies and consulates will adjudicate visa applications that are based on a same-sex marriage in the same way that we adjudicate applications for opposite gender spouses. This means that the same sex spouse of a visa applicant coming to the U.S. for any purpose – including work, study, international exchange, including F, H, L, J etc. or as a legal immigrant (through family or employment) – will be eligible for a derivative visa and can accompany their spouse to the U.S. Likewise, stepchildren acquired through same sex marriages can also qualify as beneficiaries or for derivative status.
As long as the marriage is valid in the U.S. state or foreign country where it took place it will be valid for immigration purposes. However, civil unions and domestic partnership will not provide immigration benefits.
If the same sex parties cannot marry in the fiance’s home country then the U.S. citizen may file a Form I-129F and apply for a fiancé(e) or (K) visa, which will allow the fiancé to enter the United States for the purpose of marriage. Stepchildren of the foreign fiancé may enter prior to turning 21 years old.
Furthermore, starting immediately same-sex spouses and their children are eligible for derivative immigrant visas. The stepchild and stepparent relationship for marriage based immigrant visas is established if the marriage between the U.S. citizen and foreign spouse takes place before the child turns 18 years old.
If you have any questions regarding the immigration benefits, including nonimmigrant visas and lawful permanent residence, that you or your same sex spouse maybe entitled to after the Supreme Court’s decision please schedule a consultation with our office by calling (213)984-4013 or emailing firstname.lastname@example.org.